Full text of "A treatise on crimes and misdemeanors"

See other formats

Cornell University
Library

The original of tiiis book is in
the Cornell University Library.

There are no known copyright restrictions in
the United States on the use of the text.

http://www.archive.org/details/cu31924021871227

BUSSELL

CEIMBS AND MISDBMEANOES

VOL. I.
SEVENTH EDITION

A TEEATISE

CEIMES AND MISDEMEANORS

SIR WM. OLDNALL RUSSELL, KNT.

Late Chief Justice of Bengal

IN THREE VOLUMES
VOL!

SEVENTH EDITION

WILLIAM FEILDEN CRAIES

Of the Inner Temple and Western Circuit
Barrister-at-Law, Editor of "Archbold's Criminal Pleading," etc.

AND

LEONARD WILLIAM KERSHAW

Of the Inner Temple
Barrister-at-Law, Assistant Registrar of the Court of Criminal Appeal

WITH

CANADIAN NOTES

7^V|

ALFRED B. MORINE, K.C.

Of the Bar of Nora Scotia, Newfoundland and Ontario

y,>^*^

LONDON

STEVENS AND SONS, Limited, 119 and 120 CHANCERY LANE

SWEET AND MAXWELL, Limited, 3 CHANCERY LANE

TORONTO
CANADA LAW BOOK COMPANY, Limited

PHILADELPHIA
CROMARTY LAW BOOK COMPANY, Limited

1910

PEEFACE TO THE SEVENTH EDITION.

Since the publication of tte Sixth Edition of this work (in
1896) there has been a good deal of legislation with reference
to the criminal law, both as to crimes, punishments, appeals,
evidence and costs : but no apparent progress has been made
towards the codification of Criminal Law or Criminal Pro-
cedure for England or Ireland. In this respect the Imperial
Legislature has failed to profit by the example of the self-
governing dominions of the King, such as Canada, New
Zealand, Queensland and Western Austraha, and of the
Crown Colonies, which have in numerous instances adopted
Criminal Codes framed on a model drafted by the late Sir
Robert S. Wright, and subsequently revised for the Colonial
Office.

Until Criminal Law and Procedure are re-arranged and sim-
plified by codification it is still necessary to seek for them in
a mass of scattered enactments and a congeries of judicial
decisions of varying authority, and in the works of the old
writers on the common law. The bulk of these enactments
and decisions are embodied or referred to in this work. The
aim of the present Editors has been to revise and shorten
the text, and to re-arrange those materials which are of present
value in a manner which may render them more easy of
access and understanding. They have retained the char-
acteristic feature of former editions, of a fairly full state-
ment of the facts of the more important cases quoted,
which has been found convenient for persons who have not
the reports to hand : but it has been deemed desirable to
re-arrange the titles and chapters in a more systematic
manner than can be found in former editions.

The new arrangement follows the main lines of the Draft

vi Preface to the Seventh Edition.

Code of 1880 : but the Editors have followed the lead of the
author and former editors in omitting the subject of Treason
and Treason-Felony.

Decisions on repealed statutes, where of use as authorities
on the existing law, are incorporated with the text, and cases
overridden by legislation are omitted. Decisions of substantial
value or interest given since the pubhcation of the last
edition in 1896 have been included up to July, 1909.

The recent changes made in 1907 and 1908 with respect
to the punishment of crime have rendered it necessary to
set out, in Book I. Chapter VII., a fuller statement of the
law as to punishment.

The portions of the Sixth Edition which dealt with pro-
cedure have been collected in Book XII., where also will be
found the legislation of 1907 and 1908 as to Appeal and Costs
in Criminal Cases.

The subject of evidence, treated in the earher editions by
Mr. E. Vaughan Williams, author of ' WiUiams on Executors,'
and afterwards a judge of the Common Pleas, is dealt with in
Book XIII., where in Chapter V. -wall be found the Criminal
Evidence Act, 1898.

The Editors have been able somewhat to reduce the bullc
of the text : but to effect this they have had to omit the
subject of Highway and Bridge indictments. The reason
which ultimately decided them to make this omission was,
that such indictments, though pubhc remedies, can no longer
be regarded as criminal proceedings : for they have been
assimilated to civil proceedings as to evidence (40 & 41 Vict,
c. 14), appeal (7 Edw. VII. c. 23 s. 20 (3)), and costs (8 Edw.
VII. c. 15 s. 9 (3)).

Keferences to the criminal law of the United States have
been advisedly reduced ; since those who wish to study that
law must necessarily refer to some standard American
writers on Crimes, such as Bishop, and to the Codes of the
States of the Union.

But the Editors have included references to decisions of
the Courts of Canada, Australia, and New Zealand, and of some
other colonies in which the English authorities have been
considered, and decisions have been given which may be of

Preface to the Seventh Edition. vii

value with reference to certain parts of the English law, on
which that of the colony is based.

The Editors have been careful to retain the valuable notes
of Mr. C. S. Greaves, Q.C., editor of the Third and Fourth
Editions, and draftsman of the Criminal Law Consolidation Acts
of 1861. The cases marked MSS. C. S. G. are from his collec-
tion. Those marked MS. H. S. are from the collection of
Mr. Horace Smith, editor of the Sixth Edition. Those marked
MS. Bayley, J., are from a collection made by Mr. Justice
Bayley.

References to series of reports not mentioned in the text
have so far as possible been inserted in the Table of Cases.
Repealed statutes (save in a few special cases) are not
included in the Table of Statutes ; but in the notes to existing
Statutes will be found references to the former enactments
which they supersede.

The Editors have to thank Mr. H. D. Roome, Barrister-at-
Law, for valuable aid in preparing the Table of Cases.

W. F. CRAIBS.
L. W. KERSHAW.

age 620

(5-)-

„ 620

(?■)•

„ 902

(/)•

„ 902

(h).

„ 1027

(h).

„ 1032

ie).

„ 1040

(k).

COEEIGENDA.

VOLUME I.

For Daws v. Pindar read Daws v. Paynter.

For Dr. Tudor's case read Dr. Trevor's case ; and for Tuxton v. Morris

read Juxon v. Morris.
For Inoe v. Cruikshaiik read Mee v. Cruikshank.
For Hawkins v. Ellis read Rawlins v. Ellis.
After R. v. Middleton deU 1 Str. 177.
After R. v. Middleton read Fort. 201, and dele 1 Str. 77.
Read R. v. Dodd, Sess. Cas. 135 : 93 E. R. 136.

PREFACE TO CANADIAN NOTES

The Canada Criminal Code and the Canada Evidence Act
treat of the greater part of the subjects dealt with in the text
of EussELL ON Crimes. To set out these statutes herein would
make these volumes unwieldy; to accurately express the mean-
ing of the statutes more concisely would be impossible; and
therefore these notes are necessarily confined to references to
the statutory provisions and to judicial interpretations thereof.

As the Editors state in the preface, the text of Russell on
Crimes follows the arrangement of the English Draft Code,
which is not the same as that of the Canada Criminal Code.
These notes necessarily follow the order of the text, and as to
subject matter do not go beyond the text except in reference
to appeals in indictable offences, for which reasons there are no
notes upon summary convictions or appeals therefrom, and few
upon summary or speedy trials; but though the text contains
nothing about certiorari, and little comparatively about the
practice upon appeal, it has been considered advisable to refer
extensively to these subjects in these notes.

By permission of the publisher, the writer has drawn exten-
sively on the matter contained in "Canada Criminal Law," by
W. J. Tremeear, a work so excellent and complete that it would
be difficult to quote an important and relevant decision by
Canadian Courts not referred to therein, save those given since
that work was published.

Very valuable assistance in the preparation of these notes
has been given by my son, A. JSTevill Morine, LL.B.

Alfred B. Morine.
Toronto,

Dec. 2nd, 1909.

TABLE OF CONTENTS

THE FIRST VOLUME.
BOOK I.

PRELIMINARY MATTERS.

JAPTEE PAGE

I. Of the Interpeetation of Statutes Dealino with Crimes 1

II. Of Indictable Offences 8

Felony 8

Misdemeanor 10

Matters not indictable .... 14

Summary proceedings 17

III. Of Criminal Jurisdiction . . . 19

General Rules . . 19

Ofiences in more than one county . 20

„ on a journey or voyage 20

„ in detached parts of counties 22

„ in counties of cities 25

Transitory Offences . 26

Offences on land outside England 26

„ by officials outside Great Britain 31

„ in Admiralty jurisdiction 31

„ „ „ „ (Colonies and India) . 49

„ initiated abroad . . 52

IV. Of Criminal Responsibility ... . ... 58

Infancy • ■ • 58

Insanity 62

Drunkenness 87

Compulsion or subjection to power of others .... 90

Ignorance and mistake . . . • 101

Corporate bodies .... 102

Aliens .... . 103

V. Of Parties to the Commission of Crime 104

Section I. Preliminary 104

Innocent agents 104

I Table of Contents of the First Volume.

)HAPTEE I"^"^

Section II. Principals and accessories in felony . • ■

Principals in first degree

„ second degree ... •

Accessories before the fact . • ' o«

" ^^'^^^ " " ■ ■ ■ ■ '129

,, III. Misprision of felony

„ IV. Trial and punishment of accessories . ' joo

„ V. Abettors in misdemeanor

VI. Of Attempting, Conspiring and inciting to commit Crimes . 140

(a) Attempts -^^^

(b) Criminal conspiracies • . . 14

(0) Sohciting or inciting to commit crimes. • • • 203

VII. Oe Punishments .... • • 205

Section I. Death 205

II. Exile, banishment, and expulsion .... 208

III. Transportation and penal servitude 209

IV. Imprisonment ... -H

V. Whipping ... .215

VI. Fine 217

VII. Recognisances and sureties 218

VIII. Probation of offenders 219

(a) Release of convicts on licence . . . 219

(b) Police supervision 224

,, IX. Punishment of persons under 16 230

,, X. Detention of juvenile adults 237

,, XI. Preventive detention of habitual criminals . 240

,, XII. Detention of habitual drunkards .... 24-1

„ XIII. General rules as to other punishments . 247

,, XIV. Obsolete punishments 250

,, XV. Civil effects of conviction 250

,, XVI. Pardon or remission or mitigation of punish-
ment 252

(a) Pardon . . 252

(6) Respite and reprieve ... . . 254

BOOK II.

OF OFFENCES EELATING TO THE LAW OF NATIONS.

I. Op Piracy 255

Section I. Piracy jure gentium ... 255

,, II. Piracy by municipal law . . ... 259

,, III. Accessories and punishment ... . . 264

,, IV. Jurisdiction and procedure 267

II, Op Dealing in Slaves, &c 271

Section I. The Slave Trade Acts 271

„ II. The Pacific Islanders Protection Acts . . . 283

Table of Contents of the First Volume. xi

CHAPTER PAGE

III. Of Serving Foreign States and Breaches of Neutrality 285

(a) Common law and earlier statutes 285

(6) The Foreign Enlistment Act, 1870 288

IV. Of Publications Calculated to Interfere with Peaceful

Kelations with Foreign States 297

V. Of Violation of Diplomatic Privileges . .... 299

BOOK III.

OP OI'I'ENCES AGAINST THE SECQRITY OF THE STATE.

I. Op Sedition . 301

(a) General definition of tlie offence ... . 301

(6) Publications against the King ... ... 311

(d) Publications against Parliament 313

(e) Publications against the Government . . . 314
II. Of Wrongfully Obtaining or Disclosing Public Secrets 317

III. Op Seducing Soldiers and Sailors to Mutiny 321

IV. Of Aiding the Escape of Prisoners of War 323

V. Of Unlawful Oaths, Combinations and Confederacies . 325

Section I. Voluntary oaths 325

,, II. Oaths to commit treason, felony, &c. . . 327

,, III. Combinations against public tranquilUty and

the Government 332

BOOK IV.

OP OFFENCES RELATING TO THE RIGHTS AND REVENUES
OF THE CEOAVN.

I. Of Offences Eelating to Precious Metals and Treasure
Trove ... . .

{a) Precious metals
(6) Treasure trove
(c) Bullion and plate . .
II. Of Offences Eelating to Coin .

Section I. Definitions and general provisions
,, II. Punishment and venue . . .
„ III. Counterfeiting coin ....
(a) British . .

(6) Foreign

„ IV. Impairing and defacing current coin
,, V. Importation of counterfeit coin .
„ VI. Exporting counterfeit current coin

339
339
339
340
343
343
348
349
349
352
352
353
355

xii Table of Contents of the First Volume.

CHAPTER PAGE

Section VII. Uttering, tendering, &c. counterfeit coin . . 355

(a) Common law and former statutes . . 355

(6) British coin 356

„ VIII. Buying, selling, &c. counterfeit coin below

rate which its denomination imports . . 364
IX. Making, &c., or possessing instruments for

coining 365

III. Op Offences against the Revenue Laws 371

(a) Customs ... 371

(6) Excise 387

BOOK V.

OP OFFENCES AGAINST EELIGION AND PUBLIC WORSHIP.

I. Of Blasphemy 393

II. Of Disturbances in Churchyards or Places of Public

Worship 401

BOOK VI.

OE DISTUIJBANCES OE THE PUBLIC PEACE.

I. Op Riots, Routs, Unlawful Assemblies, and Affrays . . 409

Section I. Riots 409

(a) Common law . . 409

(6) Statutes as to riots 414

„ II. Routs 422

„ III. Unlawful assemblies 422

(a) Common law . . . .... 422

(&) Under statute . . . . . 424

IV. Affrays 427

55 V. Indictment, &c . 429

„ VI. Suppression of riots, &c 431

II. Of Challenging to Fight .... 439

III. Op Forcible Entry and Detainer . . 44X

Section I. At common law 441

„ II. Under the statutes of Forcible Entry . . 442

BOOK VII.

OP OFPENCES AGAINST THE DUE ADMINISTRATION OP JUSTICE.

I. Of Perjury and Cognate Opfences 455

Section I. Perjury generally ... 455

„ II. Perjury under 5 Eliz. c. 9 525

Table of Contents of the First Volume. xiii

PAGE

Section III. Subornation of perjury 527

„ IV. False oaths not amounting to perjury . . 528

„ V. Fabrication of evidence 530

„ VI. False statutory declarations 531

II. Of Impugning, Obstructing, Defeating, and Peeveeting

THE AdMINISTEATION OP JuSTICE 53T

Section I. Contempts of Court 537

„ II. Publications affecting fair trial of pending

cases .... 54:0

„ III. Interference witb witnesses 541

„ IV. Disobeying judicial orders 542

III. Of Obstructing or Resisting the Execution op Legal

Peocess 549

Section I. Obstructing process 549

„ II. Rescue of property lawfully seized . . . 551

IV. Op Escapes 555

(a) General rule 555

(&) Escapes by the party .... . .... 555

V. Of Prison Breaking 563

VI. Op Rescue and Aiding Escape from Custody 567

VII. Of Escape or Being at Large while undee Sentence op

Penal Seevitude 573

VIII. Of Compounding Offences 579

IX. Of Baeratry, Frivolous Arrests, Maintenance,
Champerty, Buying and Selling Pretended Titles

and Embeaceey . . 585

Section I. Barratry 585

II. Frivolous arrests 586

III. Maintenance 587

IV. Champerty 594

V. Buying and selling pretended titles . . . 597

VI. Embracery 598

BOOK VIII.

OP OFFENCES WITH RESPECT TO PUBLIC OEEICE AND
ELECTIONS AND OE BEIBERY AND CORRUPTION.

I. Of Misconduct in Office 601

Section I. General rule 601

,, II. Oppression 601

III. Fraud 612

IV. Extortion 613

„ V. Refusal to serve a public office . . . . 617

II. Of Buying and Selling Public Offices 619

XIV

Table of Contents of the First Volume.

CHAPTER

III. Of Bribery and Corruption

Section I. Bribery of public officers . .

„ II. Corruption in municipal affairs . .

„ III. Corruption of agents in business . . .

IV. Op Offences with Reference to the Registration

Electors and Conduct at. Elections . . . .

II.

(e)
if)

ig)

PAGE

627
627
628
629

633

633
634

634

634
636
636
638
641
642
642
643
646

646
647
647

Section I. Offences in connection with tbe preparation

of electoral registers

Official misconduct with reference to elections
(a) Misconduct by the returning officer

and his staff

[h] Neglect or delay in delivering Parlia-
mentary election writs . . .
III. Corrupt and illegal practices at elections
(a) Definition of corrupt practices, &c.

(&) Bribery

Personation

False answers by voters .
Illegal practices ... . .

(h) Offences relating to nomination and

voting papers

(i ) Offences after an election

{j) Indictment and procedure . .

BOOK IX.

OF OFFENCES AGAINST THE PERSONS, STATUS, AND
REPUTATION OF INDIVIDUALS.

I. Op Homicide . . g55

Part I. — Of murder and felo de se . . . . . 555

Section I. Definition, &c. of murder . .... 655

II. Felo de se qqq

III. The party kilhng and the party killed ... 662

IV. The means of killing 665

V. Time of death. Treatment of wounds . . 690

VI. Provocation .... .... 692

VII. Mutual combat . . . .... 710

VIII. Resistance to the law 721

IX. Kilhng in the prosecution of criminal,

unlawful, or wanton purpose .... 755
„ X. Killing in consequence of some, lawful act

being cnminally or improperly performed,
or of some act performed without lawful
authority . ... , . 763

Part II. — Of concealment of birth . 773

Table of Contents of the First Volume. xv

CHAPTEB PAGE

Part III. — Of manslaughter 779

Section I. Definition and punislinient 779

„ II. Killing in the prosecution of some unlawful

or wanton purpose 780

„ III. Killing in consequence of some lawful act .
being criminally or improperly performed
or of some act performed without lawful

authority 789

Part IV. — Of excusable and justifiable homicide 807

Section I. (a) Excusable homicide by misadventure . 808

(&) Excusable homicide in self-defence . . 809

,, II. Justifiable homicide 813

PartV. — Of indictments and evidence on trials for hotnicide . . 818

Section I. Indictment 818

„ II. Coroner's inquisition 821

III. Evidence 822

IV. Convictions of offences not specifically

charged 826

II. Or Procuring or Attempting Abortion 829

III. Of Conspiracy, Incitement, and Attempts to Murder :
AND OP Wounding and causing Grievous Bodily

Harm 835

Section I. Conspiracy and incitement to murder . 835

,, II. Attempts to commit murder 839

,, III. Unlawful acts, causing or intended or calcu-
lated to cause bodily harm 852

(a) Common law 852

(b) Statutes 853

,, lY. Unlawful wounding 859

. ,, V. Setting engines calculated to destroy hu-
man life or inflict grievous bodily harm 859
,, VI. Causing bodily harm by furious driving,

&c 860

,, VII. Procedure, &c 861

IV. Op Attempting to Choke or to Injure by Poison or

Explosives 863

Section I. Attempting to choke, &c., and using drugs

in order to commit ofiences 863

,, II. Use of poison to commit crime .... 864
,, III. Use of explosives, corrosives, &c., for

criminal purposes 865

V. Op Opfences Eelating to Railways and Passengers

Thereon 871

VI. Op Assault and Battery 879

Section I. Definition and punishment 879

„ II. Certain aggravated assaults 891

III. Summary proceedings for assault .... 896

xvi Table of Contents of the First Volume.

CHAPTER PAQE

VII. Of False Impeisonment, Kidnapping, and Child-stealing 901

Section I. False imprisonment . 901

,, II. Kidnapping ... . . .... 902

III. Child stealing 904

„ IV. Illegally leaving mercliant seamen behind . 905
VIII. Of Neglect and Ill-Treatment of the Young, the Help-
less AND the Insane . . 907

Section I. Common law 907

,, II. Ill-treatment of apprentices and servants . 909

,, III. Dangerous performances by young persons . 910

,, IV. Exposing or abandoning children under two 911

V. Cruelty to children 912

„ VI. Offences with reference to lunatics . . . 924

IX. Of Rape, and of the Defilement or Corruption of Females 931

Section I. Rape 931

„ II. Unlawful carnal knowledge of idiot, imbecile

and lunatic females 946

,, III. Unlawful carnal knowledge of girls under

sixteen 948

„ IV. Indecent assault on females 955

„ V. Procuring the defilement or prostitution of

women and girls 955

X. Of Abduction of Females 959

XI. Of Offences Against Nature 973

Section I. Incest . . 973

„ II. Sodomy, &c 975

XII. Of Offences Relating to Marriage . 979

Section I. Bigamy 979

,, II. False statements made to obtain or prevent

marriage 1012

„ III. Offences with respect to solemnization,

registration, &c 1015

XIII. Op Criminal Libels IO21

Section I. Preliminary IO21

II. Defamatory libel . . . 1021

ni. Trial ; ; ; ; 1026

IV. Punishment 1027

V. Indictment 1028

VI. Evidence IO32

VII. Matters of defence 1039

Privilege, absolute 1041

Privilege, qualified 1047

Fair comment IO55

Truth 1057

Evidence in aggravation or mitigation 1059
VIII. Special provisions as to libels in newspapers 1060

A TREATISE

CRIMES AND MISDEMEANORS.

BOOK THE FIRST.

PRELIMINARY MATTERS.

CHAPTER THE FIRST.

INTEEPRETATION OF STATUTES DEALING WITH CRIMES.

The object of this work is to treat of crimes — i.e. of those acts or omis-
sions involving breach of a duty to which by the law of England a sanction
is attached by way of punishment or pecuniary penalty in the public
interest. The same acts or omissions may give a cause of civil action to
an individual injured thereby. But in the case of crime the ordinary
remedy is by indictment {a) — i.e. by accusation made by twelve
or. more grand jurors, and by trial thereon before a petty jury of
twelve, unless statutory provision is made for punishing the offence in
a summary or a different mode.

The general canons of construction applicable to statutes which
create or punish criminal offences, or deal with criminal procedure, are
in substance the same as those applicable to other statutes. There are
numerous authorities in which it is said that penal statutes must be
construed strictly, a rule founded on the plain principle that the power
of punishment is vested in the Legislature, in which lies the authority
to define crimes and ordain punishment (6). The true rule is that stated
in the Gauntlet (c). ' No doubt all penal statutes are to be construed
strictly— that is to say, the Court must see that the thing charged as
an offence is within the plain meaning of the words used ; must not strain
the words on any notion that there has been a shp, that there has been
a casus omissus ; that the thing is so clearly within the mischief that
it must have been intended to be included, and would have been included
if thought of On the other hand, the person charged has a right to say
that the thing charged, though within the words, is not within the spirit
of the enactment. But where the thmg is brought withm the words
and within the spirit, there a penal enactment is to be construed, like
any other instrument, according to the fair common-sense meamng

(6) Att.-Gen. ^. Sillem [ISbdJ, ^ n- «- ^^^ g.^ j^^^^ ^^-^^^^ ^^^ gj^. Montague

''fe'^ E 4Rai84 191. per Jaines, L.J., Smith). Cf. 2 H. & C. 531, Bramwell, B.

VOL. I.

2 Interpretation. [book i.

of the language used ; and the Court is not to find or make any doubt
or ambiguity in the language of a penal statute where such doubt or
ambiguity would clearly not be found or made in the same language
in any other instrument ' (d).

Observance of this canon is chiefly invoked to prevent the creation
of ofEences by construction — i.e. to restrain the Courts from usurping
the function of the Legislature by extending the words of a statute to
acts or omissions not within its plain terms or manifest intention. But
it does not debar the judges from reading into a statute creating an
offence words omitted but obviously necessary to complete the clear
intention of the Legislature (e).

The presumption against giving a retrospective operation to statutes
operates most strongly in the case of statutes creating crimes (/).

An important rule of construction which has been applied to criminal
statutes is that there is no vested right in procedure. Sect. 27 of the
Prevention of Cruelty to Children Act, 1904 (4 Edw. VII. c. 15), which
was passed on August 15, 1904, and came into force on October 1, 1904
(sect. 33 (3)), directed that six months should be substituted for three
months as the limit of time for instituting prosecutions for carnally
knowing a girl of the age of thirteen and under sixteen (48 & 49 Vict,
c. 69, s. 5 (1) ). C. D. was tried in January 1905 on an indictment
charging the commission of such offence on July 15, 1904. The pro-
ceedings were instituted on December 27, 1904. It was held that sect. 27
dealt only with procedure, and came into force at a time when the
accused was liable to prosecution, and extended the time during which
he continued liable (g).

Certain definitions of terms often used in statutes creating crimes
are included in the Interpretation Act, 1889 (52 & 53 Vict. c. 63) (h).
Of these the more important are as follows : —

Gender and Number.— By sect. 1 : ' (1) In this Act and in every
Act passed after the year one thousand eight hundred and fifty, whether
before or after the commencement of this Act (January 1, 1890), unless
the contrary intention appears, (a) words importing the masculine gender
shall include females, and (b) words in the singular shall include the
plural and words in the plural shall include the singular.

' (2) The same rules shall be observed in the construction of every
enactment relating to an offence punishable on indictment or on summary
conviction when the enactment is contained in an Act passed in or before
the year one thousand eight hundred and fifty.'

(d) See Hardoastle on Statutes (4th ed., And see E. v. Plowden, Ex parte Braith-

by Craies), pp. 425-432. waite [1909], 2 K.B. 269. 24 T L R

decided on s. 13 of the Salmon Fishery Act, 2 K.B. 24.

1873 (36 & 37 Vict. o. 71), which amends (/) R. v. Griffiths'[1895], 2 Q.B. 145, 148,

8. 32 of the Malicious Damage Act, 1861, Coleridge, 0. J., as to the penal clauses in the

by incorporating words which cannot be Bankruptcy Act, 1890 (53 & 54 Vict. c. 71).
grammatically read into the earlier enact- {g) R. v. Chandra Dharma [1905], 2 Q.b!

ment. In R. v. Palin [1906], 1 K.B. 7, the 355. Secus, if the prosecution had beeii

words ' any document ' in the second part statute barred under the old enactment

of s. 1 of the Falsification of Accounts Act, before the new enactment came into

1875 (38 & 39 Vict. o. 24), were limited, by operation. I.e. 339, Channell, J.
reference to the preamble, to documents (h) This Act repeals Brougham's Act (13

belonging to the employer of the accused. & 14 Vict. c. 21).

CHAP. I.] Interpretation Act, 1889. 3

By sect. 2 : ' (1) In the construction of every enactment relating
to an offence punishable on indictment or on summary conviction,
whether contained in an Act passed before or after the commencement
of this Act, the expression " person " shall, unless the contrary intention
appears, include a body corporate ' {i).

' (2) Where, under any Act, whether passed before or after the com-
mencement of this Act, any forfeiture or penalty is payable to a party
aggrieved, it shall be payable to a body corporate in every case where
that body is the party aggrieved.'

By sect. 3 : ' In every Act passed after the year one thousand eight
hundred and fifty, whether before or after the commencement of this
Act, the following expressions shall, unless the contrary intention appears,
have the meanings hereby respectively assigned to them, namely :

' The expression " month " shall mean calendar month ' (/).

' The expressions " oath " and " affidavit " shall, in the case of
persons for the time being allowed by law to affirm or declare instead
of swearing, include affirmation and declaration, and the expression
"swear" shall, in the like case, include affirm and declare.'

By sect. 4 : 'In every Act passed after the year 1850 and before
the commencement of this Act (Jamiary 1, 1890) the expression
" count)'' " shall, unless the contrary intention appears, be construed as
including a county of a city and a coxxnty of a town.'

By sect. 13 : 'In this Act, and in every other Act, whether passed
before or after the commencement of this Act, the following expressions
shall, unless the contrary intention appears, have the meanings hereby
respectively assigned to them, namely :

' (4) The expression " court of assize " shall, as respects England,
Wales, and Ireland, mean a court of assize, a court of oyer and terminer,
and a court of gaol delivery, or any of them, and shall, as respects England
and Wales, include the Central Criminal Court.

' (5) The expression " assizes," as respects England, Wales, and
Ireland, shall mean the courts of assize usually held in every year, and
shall include the sessions of the Central Criminal Court, but shall not
include any court of assize held by virtue of any special commission, or,
as respects Ireland, any court held by virtue of the powers conferred by
section sixty-three of the Supreme Court of Judicature Act (Ireland),
1877 (40 & 41 Vict. c. 57).

' (10) The expression " the Summary Jurisdiction Acts," when used
in relation to England or Wales, shall mean the Summary Jurisdiction

(i) This enactment replaces 7 & 8 Geo. calendar month.' Bysubseo. 2: 'A prisoner
IV. c. 28 (E), and 9 Geo. IV. c. 54, s. 35 (I). whose term of imprisonment or penal
As to its effect vide post, p. 102. servitude expires on any Sunday, Christ-
ie) At common law month primarily mas Day, or Good Friday, shall be dis-
means ' lunar ' month. Bruner v. Moore charged on the day next preceding.'
[1904], 1 Ch. 305, Farwell, J. This enact- Subject to this enactment, a person sen-
ment applies only to the term as used in tenoed to a month's imprisonment is
statutes. By s. 12 (1) of the Prison Act, entitled to be discharged on the day in the
1898(61 & 62 Vict. c. 41) : ' In any sentence next month immediately preceding the
of imprisonment passed after the com- day corresponding to the one on which
mencement of this Act (January 1, 1899) his sentence takes effect. Migotti i;. Colvill,
the word month shall, unless the contrary 4 C. P.D. 233 : 48 L. J. C.P. 695.

is expressed, be construed as meaning

B 2

4 Inter f relation. [book i.

(England) Acts {h), and when used in relation to Scotland the Summary
Jurisdiction (Scotland) Acts, and when used in relation to Ireland the
Summary Jurisdiction (Ireland) Acts.

' (11) The expression " court of summary jurisdiction " shall mean
any justice or justices of the peace, or other magistrate, by whatever
name called, to whom jurisdiction is given by, or who is authorised to
act under, the Summary Jurisdiction Acts, whether in England, Wales,
or Ireland, and whether acting under the Summary Jurisdiction Acts or
any of them, or under any other Act, or by virtue of his commission, or
under the common law Q).

' (14) The expression " court of quarter sessions " shall mean the
justices of any county, riding, parts, division, or liberty of a county, or
of any county of a city or county of a town, in general or quarter sessions
assembled, and shall include the court of the recorder of a municipal
borough having a separate court of quarter sessions/

Person. — By sect. 19 : 'In this Act and in every Act passed after
the commencement of this Act the expression " person " shall, unless the
contrary intention appears, include any body of persons, corporate or
unincorporate.'

Writing. — By sect. 20 : 'In this Act and in every other Act, whether
passed before or after the commencement of this Act, expressions
referring to writing shall, unless the contrary intention appears, be
construed as including references to printing, lithography, photography,
and other modes of representing or reproducing words in a visible form.'

Committed for Trial. — By sect. 27 : 'In every Act passed after the
commencement of this Act the expression " committed for trial " used
in relation to any person shall, unless the contrary intention appears,
mean, as respects England and Wales, committed to prison with the
view of being tried before a judge and jury, whether the person is com-
mitted in pursuance of section twenty-two or of section twenty-five of
the Indictable Offences Act, 1848 (11 & 12 Vict. c. 42), or is committed
by a court, judge, coroner, or other authority having power to commit
a person to any prison with a view to his trial, and shall include a person
who is admitted to bail upon a recognisance to appear and take his trial
before a judge and jury.'

Offences under two or more Laws. — By sect. 33 : ' Where an act
or omission constitutes an offence under two or more Acts, or both under
an Act and at common law, whether any such Act was passed before or
after the commencement of this Act, the offender shall, unless the
contrary intention appears, be liable to be prosecuted and punished under
either or any of those Acts, or at common law, but shall not be liable to
be punished twice for the same offence ' (m).

Distance. — By sect. 34 : 'In the measurement of any distance for

(i) The Summary Jurisdiction (Eng- licences or revision of jury lists. Boulter

land) Acts are the Summary Jurisdiction v. Kent JJ. [1897], A.G. 556. Hagmaier v

Acts, 1848 (11 & 12 Vict, c 43) and 1879 Willesden Overseers [1904], 2 K.B. 316.

(42 & 43 Vict. c. 49), and any Act, past or (m) As to the effect of this section, see

future, amending tliese Acts or either of 'post, p. 6. There are numerous enactments

them (52 & 53 Vict. c. 63, s. 13 (7) ). containing a similar provision as to par-

(l) This definition does not apply to ticular offences. See Hardcastle on Statutes

justices acting for the grant of liquor (4th ed., by Craies), 306n.

CHAP. I.] Interfretation Act, 1889. 5

the purposes of any Act passed after the commencement of this Act,
that distance shall, unless the contrary intention appears, be measured
in a straight line on a horizontal plane ' {n).

Citation of Acts. — By sect. 35 : ' (1) In any act, instrument, or
document, an Act may be cited by reference to the short title (o), if any,
of the Act, either with or without a reference to the chapter, or by
reference to the regnal year in which the Act was passed, and where there
are more statutes or sessions than one in the same regnal year, by reference
to the statute or the session, as the case may require, and where there
are more chapters than one, by reference to the chapter, and any enact-
ment may be cited by reference to the section or subsection of the Act
in which the enactment is contained (p).

' (2) Where any Act passed after the commencement of this Act
contains such reference as aforesaid, the reference shall, unless a contrary
intention appears, be read as referring, in the case of statutes included
in any revised edition of the statutes purporting to be printed by
authority, to that edition, and in the case of statutes not so included,
and passed before the reign of King George the First, to the edition pre-
pared under the direction of the Record Commission ; and in other
cases to the copies of the statutes purporting to be printed by the King's
Printer or under the superintendence or authority of His Majesty's
Stationery Office.

' (3) In any Act passed after the commencement of this Act a
description or citation of a portion of another Act shall, unless
the contrary intention appears, be construed as including the word, section,
or other part mentioned or referred to as forming the beginning and as
forming the end of the portion comprised in the description or citation.'

Effect of Repeal. — By sect. 11 : ' (1) Where an Act passed after the
year 1850, whether before or after the commencement of this Act (January
1, 1893), repeals a repealing enactment, it shall not be construed as
reviving any enactment previously repealed, unless words are added
reviving that enactment.

(2) Where an Act passad after the year 1850, whether before or after
the commencement of this Act, repeals wholly or partially any former
enactment and substitutes provisions for the enactment repealed, the
repealed enactment shall remain in force until the substituted provisions
come into operation.

By sect. 38 : ' (1) Where this Act, or any Act passed after the com-
mencement of this Act (January 1, 1890), repeals and re-enacts, with or
without modification, any provisions of a former Act, references in any
other Act to the provisions so repealed shall, unless the contrary intention
appears, be construed as references to the provisions so re-enacted.

' (2) Where this Act, or any Act passed after the commencement of
this Act, repeals any other enactment, then, unless the contrary intention
appears, the repeal shall not —

(n) See R. v. Wood, 5 Jur. 225, post, p. 20. (p) As to the old rule of citation see

(o) For a list of short titles of statutes R. v. Biers [1834], 1 A. & E. 327. Gibbs

see Hardcastle on Statutes (4th ed., by v. Pike [1841], 8 M. & W. 223.

Craies), Appendix B.

6 Effect of Repealed Statutes. [book I.

' {a) revive anything not in force or existing at the time at which the

repeal takes effect ; or
■ (b) affect the previous operation of any enactment so repealed or

anything duly done or suffered under any enactments so

repealed ; or
'(c) affect any right, privilege, obligation, or liability acquired,

accrued, or incurred under any enactment so repealed ; or
' (d) affect any penalty, forfeiture, or punishment incurred in respect

of any offence committed against any enactment so repealed ;

' (e) affect any investigation, legal proceedmg, or remedy m respect
of any such right, privilege, obligation, liability, penalty, for-
feiture, or punishment as aforesaid ;
and any such investigation, legal proceeding, or remedy may be instituted,
continued, or enforced, and any such penalty, forfeiture, or punishment
may be imposed, as if the repealing Act had not been passed.'

In the Criminal Procedure Act, 1851 (14 & 15 Vict. c. 100), ' the
word " indictment " shall be understood to include " information " (r),
" inquisition " (s), and " presentment " (t), as well as " indictment," and
also any " plea," " replication," or other pleading, and any " nisi prins
record " (m), and the term " finding of the indictment " shall be under-
stood to include the " taking of an inquisition," the " exhibiting of an
information," and " the making of a presentment " ' (sect. 30).

Effect on Common Law or on Prior Legislation. — The effect of sect.
33 of the Interpretation Act, 1889, is to create a presumption (v) that
offences created by modern Acts are cumulative upon, and not in
substitution for, offences at common law or under prior statutes not
expressly repealed.

The provision creating a presumption against the right to punish the
offender twice for the same offence is in accord with the common law
rule (w). It appears not to bar a prosecution.

In considering statutes relating to crime it has to be determined whether
they override or supplement the common law or prior statutes, and
whether the remedies, procedure, or punishments which they enact are
exclusive of those existing or alternative to or cumulative on them.

In E. V. Thompson (a;), however, it was held that an indictment

(?) Thus the Larceny Act, 1901, does not, only. See 51 & 52 Viet. c. 43, s. 78 (3).

by repealing ss. 75, 76 o£ the Larceny Act, («) i.e. the record made up for trial oE

1801, affect liabiUty to punishment for an indictment or information originating

offences under those sections committed in or removed into the High Court. See

before the time when the Act of 1901 took Short & Mellor, Cr. Pr. (2nd ed.) 110.

effect. [v) As to what is sufficient to rebut such

(r) i.e. a criminal information exhibited presumption see Miohell v. Brown, 28 L. J.

by the Attorney-General ex officio or by M.C. 53 ; 2 E. & E. 267. Fortesoue v.

leave of the High Court (K.B.D.). Bethnal Green [1891], 2 Q.B. 171, 178.

(s) i.e. a coroner's inquisition. In R. v. {w) Middleton v. Crofts [1736], 2 Atk.

Ingham, 33 L. J. Q.B. 183, it was held that 650, 674 ; R. v. Miles, 24 Q.B.D. 423, 431.

indictment in b. 6 of the Offences against This subject is discussed post, Bk. xii. c. ii.

the Person Act, 1861 (24 & 25 Vict. c. 100), under 'Autrefois convict,' 'Autrefois acquit.'

included a coroner's inquisition. (x) 16 Q.B. 832 ; sed quaere. The ratio

(t) By the grand^ jury of its own act. decidendi was that conspiracy was a

Such presentments in respect to highways common law offence,
and bridges are now by way of indictment

CJHAP. I.] Effect of Repealed Statutes. 7

for conspiracy to violate a statute would lie after the repeal of the
statute.

Effect of Repeal of Statutes creating Offences. — 'It has been long
established that when an Act of Parliament is repealed, it must be con-
sidered (except as to transactions passed and closed) as if it had never
existed' ( J/) . Where, therefore, a justice of the peace, under 13 Geo. III.
c. 78, s. 24, presented the inhabitants of a parish for the non-repair of a
highway, and the proceedings were removed into the Court of Queen's
Bench, and the defendants pleaded, and issues of fact were joined, and
a verdict found against the defendants, and the issues had been joined
before, but tried after, the day on which the Highway Act, 1835 (z)
(which repealed 13 Geo. IIJ. e. 78), came into operation, the judgment
was arrested, on the ground that the power to give judgment upon a
presentment under 13 Geo. III. c. 78 was gone (a). So where the lia-
bility to repair certain highways in a parish was taken away from the
parish by statute, and cast upon certain townships, and the statute gave
& form of indictment against the townships for non-repair, and one of
the townships was indicted under the statute, but before the trial the
statute was repealed, and a verdict was found against the township,
the judgment was arrested, on the ground that, although whatever had
been done under the Act before it was repealed was valid, the statute
when repealed was, with regard to any future operation, as if it had
never existed, and the effect of the repeal is the same whether the alter-
ation affects procedure only or matter of substance (&). So where a
prisoner was indicted for privately stealing in a shop against 10 & 11
Will. III. c. 23, which was repealed (1 Geo. IV. c. 117, s. 1) after the
commission, but before the trial, of the offence, it was held that the
prisoner could not be sentenced under the repealed Act(c), there being
no special clause in the repealing Act continuing the repealed Act as
to matters arising before the repeal took effect {d).

Repealing Acts, however, sometimes contain clauses for the purpose
of keeping alive the statutes they repealed so far as they relate to of-
fences committed against them, and in repeals effected after 1889 there
is a presumption to this effect (e). Where a bankrupt had committed
an offence against 12 & 13 Vict. c. 106, s. 251, and an information had
been laid before a magistrate for that offence, and a warrant issued for
the prisoner's apprehension before 24 & 25 Vict. c. 134 came into opera-
tion, which by sect. 230 repealed the former Act, except as to 'any
proceeding Dending,' &c., 'or any penalty incurred, ' &c., at the com-
mencement of the Act, it was held that there was a proceeding pending
within the meaning of this exception, and that the word 'penalty' in it
extended to any penal consequences whatever, and was not restricted
to a pecuniary penalty, and, consequently, that the bankrupt might be
convicted and sentenced under the former Act(/).

(y) Surtees v. Ellison, 9 B. & C. 750, {d) See Miller's Case [1764], 1 W.

Tenterden, O.J. See 52 & 53 Vict. c. 63, Bl. 450; 3 Wils. (K.B.) 420.
ss.ll, 38, ante, p. 5. (e) 52 & 53 Vict. c. 63, s. 38(2),

(z) 5 & 6 Will. iV. c. 50. ante, p. 5. See R. v. Webb, 140 Cent.

(o) R. «. Mawgan, 8 A. & E. 496. Cr. Ot. Sess. Pap. 627, Walton, J.

(6) -R. V. Denton, 18 Q.B. 761. (f) R. v. Smith, L. & C. 131.

(7a)

CANADIAN NOTES.

INTERPRETATION OP STATUTES.

See the Criminal Code, R.S.C. (1906) eh. 146, see. 2, for the inter-
pretation of words and phrases used therein.

Every provision of the Interpretation Act_ (R.S.C. (1906) ch. 1)
extends and applies to every Act of the Parliament of Canada except
in so far as such provision — ■

(a) Is inconsistent with the intent or object of such' Act ; or

(&) Would give to any word, expression or clause of any such Act
an interpretation inconsistent with the context ; or

Interpretation of Criminal Statutes. — Penal statutes must be con-
strued strictly, and where an enactment imposes a penalty for a^
criminal offence, a person against whom it is sought to enforce the^
penalty is entitled to the benefit of any doubt which may arise in the
construction of the enactment. R. v. Wirth, 1 Can. Cr. Cas. 231.

Words and Phrases in Criminal Code. — See 11 Can. Cr. Cas., pp.
375-379 ; 12 Can. Cr. Cas. 583, 13 Can. Cr. Cas. 541.

The part headings of the Code are to be regarded as preambles to
statutes. R. v. Brooks, 5 Can. Cr. Cas. 372.

"Bank Note," a forged paper purporting on the face of it to be a
bank note is within the statute, although there be no such bank as
named. R. v. Macdonald, 12 U.C.Q.B. 543.

"Everyone" includes bodies corporate unless the context requires
otherwise. Union Colliery Company v. The Queen, 4 Can. Cr. Cas. 407.

"Capable of being stolen" (in Code sec. 354) includes anything
capable of being stolen by anybody, not merely by the accused. R. v.
Gildstaub, 5 Can. Cr. Cas. 357.

"Person" includes "bodies corporate" and "companies," but a
corporation cannot be indicted for manslaughter. R. v. Great West
Laundry Co., 3 Can. Cr. Cas. 5, at p. 519.

"Everyone" is a wider term than "person." Union Colliery v.
The Queen, 4 Can. Cr. Cas., at p. 407.

A small room used for temporary detention of persons is not
included in the phrase ' ' a common gaol or prison. " In re Burke
(1894), 27N.S.R. 286.

CHAP. I.] Interpretation of Statutes. 7b

Valuable Security. — It was formerly held that the term "valuable
security" meant a valuable security to the person who parted with it
on the false pretence, and that the inducing a person to execute a
mortgage on his own property was therefore not obtaining a ' ' valuable
security." R. v. Brady (1866), 26 U.C.Q.B. 13; but the defini-
tion in Criminal Code expressly includes any deed, bond, etc., which
evidences title.

Defendant was indicted for forging an order for the payment of
money, the order being in the following words : ' ' John McLean, tailor,
please give M. A. S. (defendant) to the amount of $3.50 and by doing
you will oblige me, A. McP. " It was proved that the signature A.
McP. was forged by the prisoner, and the prisoner was convicted and
sentenced. It was held that this was an order for the payment of
■ money, and not a mere request, and the conviction was affirmed. R. v.
Steele (1863), 13 U.C.C.P. 619 (following R. v. Tuke (1858), 17
U.C.Q.B. 296).

The true criterion as to whether a document is an order for pay-
ment of money or only a request, is, whether, if the instrument were
genuine, and the person to whom it was directed paid it, he could
recover the amount from the party by whom the order was given, or
charge it to him, for if such be the case it is an order. R. v. Carter, 1
Cox 172 ; R. V. Ferguson, 1 Cox 241 ; R. v. Dawson, 3 Cox 220 ; R. v.
Vivian, 1 Den. C.C. 35.

(8)

CHAPTEE THE SECOND.

OF INDICTABLE OFFENCES.

Offences which may be made the subject of indictment, and are below
the crime of treason (w), fall into two classes, felonies and misde-
meanors.

1. Felony — Common Law. — Felony is the common-law term em-
ployed to describe the graver crimes Imown to the common law below
the degree of high treason or petty treason (a;). The term has long been
used to signify the degree or class of crime committed, rather than the
penal consequences by way of forfeiture entailed by its commission.
But the proper definition at common law appears to be — an offence
(triable by indictment only at common law) which occasions a total
forfeiture of either lands or goods, or hoth.(y), at the common law; to
which capital or other punishment may be superadded according to the
degree of guilt (s). Capital punishment is not an essential element in
the original definition, but was long so closely associated with felony
that until 1827, if a statute made a new offence felony, the law im-
plied that it should be punished not merely by forfeiture, but also by
death (a), subject to the right of benefit of clergy (&), unless that were
expressly denied by statute (c). This is merely a particular instance of
the rule that where .a statute describes a new offence as felony, it there-
by by necessary consequence gives to the offence the like incidents that
belong to a felony by the rules and principles of the common law or
general statutory provisions. The chief of these incidents are :

1. Punishment (d).

2. The liability of persons aiding and abetting, committing or

(w) Treason (which ja only incident- < App. ii. p. 129. The derivation of 'fel-

ally treated in this work) is sometimes ony' is uncertain. It is by some traced

described as a form of felony (see 60 to the Low Latin fello (Ital. fellone) ;

& 61 Vict. c. 18, a. 1) ; but the pro- by others to feah or fie, 'fief or estate,'

cedure for trial of treason is by statute and Ion, 'price or value,' and is by

different. See Archbold, t!r. PL (23rd them said to mean pretium feudi. See

ed.) 928; 1 Hawk. c. 17; 2 Stephen, Spelm. Glos. s.u. 'Felon'; Murray, Diet.

Hist. Crim. Law, 241; Steph. Dig. Cr. Eng. Lang, s.v.; 4 Bl. Com. 95,
Law (6th ed.), arts. 52-62; Pari. Pap. (a) 4 Bl. Com. 98. R. v. Johnson,

1878, H. L. (No. 178), Report by Mr. 3 M. & S. 539.

R. S. Wright on Acts relating to Trea- (b) Abolished in 1827. Vide post,

son. Aa to piracy, see post, tit. 'Pir- p. 205n.
acy,' p. 255. (c) 7 & 8 Geo. IV. c. 28, s. 8, post, p.

(aj) Now merged in murder: 24 & 246, which overrides the common-law

25 Vict. c. 100, s. 8. presumption in favour of capital pun-

(y) These forfeitures were abolished ishment (which applied to all felonies

in 1870, except in the case of outlawry: except petty larceny and mayhem) by

see 33 & 34 Vict. c. 23, s. 1. laying down a rule for the punishment

(s) 4 Bl. Com. 95; and see 1 Hawk. of felonies not specifically punishable

c. 25, s. 1. In Scots law 'the higher by other statutes.

crimes, rape, robbery, murder, arson, (d) Vide post, p. 246. The result of

&c., Avere called felony, and, being in- legislation in the nineteenth century

terpreted want of fidelity to his lord, has been to make the punishment of

made the vassal lose his fief.' 2 Hume, every felony depend upon some statute.

CHAP, n.] Of Indictable Offences. 9

procuring the new felony to be convicted as principals in the
second degree (e), or accessories before the fact (/).

3. Liability to arrest without warrant.

4. Liability to indictment. '

5. The right of peremptory challenge of twenty of the jurors

summoned to try the indictment {g).
Felony — Statutes.— No statutory offence is treated as a felony unless it
is made so by express words or necessary implication. Not only those
crimes which are made felonies by express words in a statute, but also
all those which are by statute decreed to have or undergo judgment of
life and member become felonies thereby, whether the word 'felony ' be
omitted or mentioned (A). And a statute which declares that the offender
shall, under the particular circumstances, be deemed to have feloniously
- committed the act, makes the offence a felony, and imposes all the
common and ordinary consequences attending a felony (*). So where a
statute says that an offence, previously a misdemeanor, ' shall be deemed
and construed to be a felony,' instead of declaring it to be a felony in
distinct and positive terms, the offence is thereby made a felony (/). An
enactment that an offence shall be felony, which was felony at common
law, does not create a new offence (k). An offence is not to be made felony
by the construction of doubtful and ambiguous words in a statute ; and
therefore, if it be prohibited under ' pain of forfeiting all that a man has,'
or of ' forfeiting body and goods,' or of being ' at the king's will for body,
land, and goods,' the offence created is only a misdemeanor (I). Where
a statute has made the doing of an act felonious, if a subsequent statute
make it fenal only, the latter statute is considered as virtually repealing
the former, so far as relates to the punishment of the offence (m). Thus,
where a statute (9 Geo. I. c. 22) made an offence punishable with death
and a subsequent statute (16 Geo. III. c. 30) imposed a forfeiture of
£20 for the same offence when first committed, recoverable before
justices of the peace, and made the second offence felony, the latter
statute was held to be a virtual repeal of the former (w). ' Where
a later statute again describes an offence which had been previously
created by a former statute, and affixes a different punishment to it, and
varies the procedure, or if the later enactment expressly alters the quality
of the offence, as by making it a misdemeanor instead of a felony (o), or
a felony instead of a misdemeanor (p), the later enactment must be

1 East, P.O. 343. of clergy.' The indictment was held bad

(/) R. V. James, 24 Q.B.D. 439. As to for omitting the word ' feloniously.'

accessories after the fact see 1 Hale, 613, (i) R. v. Johnson, 3 M. & S. 539, 556,

614, 704 ; 3 Co. Inst. 59 ; and 24 & 25 Vict. Bayley, J.

c. 94, s. 4, post, p. 131. (j) R. v. Salomons, 1 Mood. 292, ovev-

(g) Gray v. R., 11 CI. & F. 427 ; 6 St. ruling R. v. Cale, 1 Mood. 11.

Tr. N. S. 117. 6 Geo. IV. c. 50, s. 29 (E). (fc) R. v. Williams, 7 Q.B. 253, Patte-

7 & 8 Geo. IV. c. 28, s. 3 (E). As to colonies son, J.

see Levinger v. R., L. R. 3 P.C. 282. (l) 1 Hawk. c. 40, s. 3.

(h) 1 Hale, 703 ; 1 Hawk. c. 40, a 2. (m) 1 Hawk. c. 40, ». 5.

R. V. Home, 4 Cox, 263, Patteson, J. This (re) R. v. Davis, 1 Leach, 271.

was an indictment on 5 Geo. IV. c. 84, s. 22, (o) Id ibid.

which enacts that persons at large in the (p) See R. v. Cross, 1 Ld. Raym. 711 ;

United Kingdom during the term of » 3 Salk. 193. It has been held, notwith-

sentence of transportation ' shall suffer standing R. v. Cross, that an indictment

10 Of Indictable Offences. tBOOK i.

taken as operating by way of substitution (and implied repeal) and
not cumulatively ' (q).

Where a statute makes a second offence felony, or subject to a heavier
punishment than the first, it is always implied that such second offence
has been committed after a conviction for the first ; and unless this is
stated in the indictment, the offence is punishable as a first offence (q).

2. Misdemeanor. — The word misdemeanor is applied to all offences
(whether at common law or by statute) which are below the degree of
felony, whether they are punishable on indictment or on summary con-
viction. They may be punished, according to the character of the offence,
by fine or imprisonment, or both (r). The word is generally used in
contradistinction to felony, and includes such offences as perjury, battery,
libel, conspiracy, and public nuisance (s). Misdemeanors have been
sometimes termed misprisions : indeed, the word misprision, in its larger
sense, is used to signify every considerable misdemeanor which has not
a certain name given to it in the law ; and it is said that a misprision is
contained in every treason or felony whatsoever, and that a person
gailty of felony or treason may be proceeded against for a misprision
only, if the king please (t).

The term misdemeanor applies not only to completed offences below
the degree of felony, but also to attempts (u), or incitements (v), or con-
spiracies (w) to commit a complete felony or misdemeanor which do not
result in the commission of the full offence. An indictment lies at
common law for all kinds of inferior crimes of a public nature, as mis-
prisions, and all other contempts {x), all disturbances of the peace, oppres-
sions, or misbehaviour by public officers (y), and all other misdemeanors
whatsoever of a public evil example against the common law (z). An
indictment will lie for contempt of court by attacking courts of justice
or attempting to obstruct the course of justice {a) : but it seems doubtful
whether every contempt is indictable. In an early case, Holt, C.J.,
said : ' If a witness be insolent we may commit him for the immediate
contempt or bind him to his good behaviour, but we cannot indict
him' (b). It seems, however, to be established that whatever openly
outrages decency and is injurious to public morals, is a misdemeanor
at common law (c). Thus the exposure of a man's person in a public
place is indictable (d).

will lie for receiving as a misdemeanor in (v) Post, p. 203.

cases not falling within 24 & 25 Vict. u. 96, (w) Post, p. 146.

a. 91. R. V. Payne [1906], 1 K.B. 97. (x) Post, p. 537.

(q) Michell v. Brown, 2 E. & E. 267, (y) Post, p. 601.

Campbell, C.J. Cf. Henderson v. Sher- (z) 2 Hawk. c. 25, s. 4.

borne, 2 M. & W. 236, 239. As to alterna- (a) R. v. Tibbits [1902], 1 K.B. 77. R.

tive remedies under different enactments v. Gray [1900], 2 Q.B. 36. Vide post, Bk.

vide ante, pp. 4, 6. , vii. p. 537, and Oswald on Contempt

(r) Burn's Justice (30th ed.), tit. (2nd ed.), chap. i.

' Misdemeanor,' citing Barlow's Justice, (6) R. v. Rogers, 7 Mod. 28. See R. r.

tit.' Misdemeanor.' See posi, c. vii. 'Punish- Nun, 10 Mod. 186.

ment,' p. 249. (c) 4 Bl. Com. 65n. ; 1 Hawk. u. 5, s. 4 ;

(«) 4 BL Com. 5, note 2. Burn's Justice 1 East, P.C. p. 3.

(30th ed.), tit. ' Misdemeanor.' (d) R. v. Sedley, 1 Sid. 108 ; 3 Keb. 620.

(t) 1 Hawk. c. 20, s. 2, and o. 59, ss. 1, 2. R. v. Holmes, Dears. 207. Vide post, Bk.

Burn's Justice, tit. 'Felony.' xi. u. vi.

(u) Post, p. 140.

CHAP. II.] Of Indictable Offences. 11

Breach of Statute— Test of Indictability.— In E. v. Hall (e), Charles, J.,
adopted the rule laid down in 2 Hawk. o. 25, s. 4, that ' it seems to be
a good general ground that wherever a statute prohibits a matter of
public grievance to the liberties and security of a subject, or commands
a matter of public convenience, as the repairing of the common streets
of a town, an offender against such statute is punishable not only at
the suit of the party aggrieved, but also by way of indictment for his
contempt of the statute, unless such method of proceeding do manifestly
appear to be excluded by it' (/) ; and the law as laid down in K. v. Hall
has been accepted as correct {g).

Where an act or omission, which is not an offence at common law
is made punishable by a statute, the questions arise whether the criminal
remedies are limited to the particular remedy given by the terms of the
statute, or, in other words, whether the remedy given by the statute
is exclusive of or alternative to other remedies given by other statutes
or the common law. It has been laid down that where an act or
omission is not an offence at common law, but is made an offence by
statute, an indictment will lie where there is a substantive prohibitory
clause in such statute, though there be afterwards a particular pro-
vision and a particular remedy given ih). ' Where a duty is created
b}'^ statute which affects the public as the public, the proper mode
if the duty is not performed is to indict or take the proceedings pro-
vided by the statute' {i). Thus, an unqualified person may be indicted
for acting as an attorney contrary to the Solicitors Act, 1843 (6 & 7
Vict. c. 73), s. 2, although sect. 35 and sect. 36 enact, that in case any
person shall so act he shall be incapable of recovering his fees, and
that such offence shall be deemed a contempt of court and punishable
accordingly (/). And a clerk to borough justices has been held liable
to indictment for being interested in the prosecution of offenders
committed by borough, justices, as he was not liable to the particular
penalty prescribed by sect. 102 of the Municipal Corporations Act, 1835
(5 & 6 Will. IV. c. 76) {h). When a new offence is created by statute,
and a penalty is annexed to it by a separate and substantive clause,
it is not necessary for the prosecutor to sue for the penalty ; but he
may proceed on the prior clause, on the ground of its being a misde-
meanor {I). And wherever a statute forbids the doing of a thing,

(/) See 1 Hawk. u. 22, a. 5 ; 2 Hawk. 5 Eliz. c. 4, s. 31 (rep.) enacted, 'that it

c. 25, s. 4. shall not be lawful to any person to set up,

(g) Saunders v. Holborn District Bd. of &c., any craft, mystery, &c., except he

Works [1895], 1 Q.B. 64. shall have been brought up therein seven

(h) '&. V. Wright, 1 Burr. 543. E. v. years as an apprentice,' &c., «po» para that

Gregory, 5 B. & Ad. 555. R. v. Crossley, every person willingly offending or doing

10 A. & E. 132. R. V. Walker, 44 L. J. the contrary forfeit for every default forty

M.C. 169. R. V. Hall [1891], 1 Q.B. 747, shillings for every month ; and the method

770, Charles, J. of proceeding upon this statute was either

(i) Clegg V. Earby Gas Co. [1896], 1 Q.B. by information qui tarn in the court of oyer

362, Wills, J. See Att.-Gen. v. L. N. W. R. and terminer or sessions of the county, &c.,

[1900], 1 Q.B. 78. where the offence was committed, to re-

(j) R. V. Buchanan, 8 Q.B. 883. cover the penalty, or by indictment in those

\k) Fox V. R., 29 L. J. M.C. 54 (Ex. Ch.). courts. But it should be observed that a

(I) R. V. Harris, 4 T. R. 205, Ashhurst, J. subsequent section (39) gave authority to

And this principle has been held to apply proceed by indictment, or by information,

where the clause annexing the penalty was &e. See the cases collected in the note to

12 Of Indictable Offences. [book i.

the doing it wilfully, although without any corrupt motive, is indict-
able (m). Thus, under 3 & 4 Vict. c. 97, s. 15 (rep.), which made it a
misdemeanor if any person ' shall wilfully do, or cause to be done, any-
thing in such a manner as to obstruct any engine or carriage using
any railway, Maule, J., held, that if a person designedly placed on a
railway substances having a tendency to produce an obstruction, he
was within the Act, and that it was not necessary that he should have
placed them there expressly with the view to obstruct an engine (n). It
has also been ruled that if a statute enjoins an act to be done, without
pointing out any mode of punishment, an indictment lies for disobeying
the injunction of the Legislature (o). Thus, the father of a child was
indictable if, being requested by the registrar within forty-two days
of its birth so to do, he wilfully refused to inform the registrar of the
particulars required by the Act to be registered touching the birth, con-
trary to sect. 20 of the Births and Deaths Eegistration Act, 1836 (6 & 7
WiU. IV. c. 86) (p). And the remedy by indictment in such a case is not
taken away by a suhseguent statute pointing out a particular mode of
punishment for such disobedience (q). Where the same statute which
enjoins an act to be done contains also an enactment providing for a
particular mode of proceeding, as commitment, in case of neglect or
refusal, it has been doubted whether an indictment will He (r). But
' all that the authorities estabHsh ' on this point is that where there is
a substantial general prohibition or command in one clause and there
is a subsequent clause which prescribes a specific remedy, the remedy
by indictment is not excliided (s). Where a statute only adds a further
penalty to an offence prohibited by the common law, the offender may
still be indicted at the common law (t) ; and if a statute gives a new
punishment or new mode of proceeding for what before was a misde-
meanor, without altering the class or character of the offence, the new
punishment or new mode of proceeding is alternative only, and the
offender may be proceeded against as before for the common-law misde-
meanor (see sect. 33 of the Interpretation Act, 1889, ante, pp. 4 & 6).

R. V. Kilderby, 1 Wms. Saund. 312. See Balme, 2 Cowp. 648, cited 2 Hawk. „. 25,

also Morris v. Loughborough Corporation s. 4, in notis. And, generally speaking, the

[1908], 1 K.B. 205. Court of King's Bench cannot be ousted

(m) R. V. Sainsbury, 4 T. R. 457, where of its jurisdiction save by express words, or

it was held to be a misdemeanor in magis- by necessary implication. Gates v. Knight,

trates to grant an ale licence where they 3 T. R. 445, Ashhurst, J.
had no jurisdiction. See R. v. Nott, 4 Q.B. (r) R. v. Cummings, 5 Mod. 179. R. v.

768, Denman, C.J. King, 2 Str. 1268, cases of indictments

(n) R. V. Holroyd, 2 M. & Rob. 339 ; and against overseers for neglecting to account,

see Jones v. Taylor, 1 E. & E. 20, as to the and for not paying over the balance within

meaning of the words ' wilfully trespass ' in the time limited by the statute. See Couch

3 & 4 Vict. c. 97, s. 16. v. Steel, 3 E. & B. 402. In 2 Nolan, P. L.

(o) R. V. Davis, Say. 163, discussed in 453, it is stated that an indictment will lie

R. V. Robinson, 2 Burr. 803 (refusal to in these cases, though the statute provides

receive a pauper removed under an order of another remedy by commitment. See

justices). See also R. v. Harris, 4 T. R. 202. cases there cited. As to modern statutes

(p) ,R. V. Price, 11 A. & E. 727. Sect. 20 see 52 & 53 Vict. c. 63, s. 33, ante, p. 4.
was repealed in 1874, and replaced by 8. 39 (s) R. v. Hall [189]"!, 1 Q.B. 747, 770,

of the Births and Deaths Registration Act, Charles, J.

1874 (37 & 38 Vict. c. 88), which makes the (<) 2 Hawk. c. 25, s. 4. R. v. Wigg, Ld.

refusal an offence punishable on summary Ray m. 1163; 2 SaUt. 460. And see the

conviction. cases collected in R. w. Dickenson, 1 Wms.

(q) R. V. Boyall, 2 Burr. 832. R. v. Saund. 1356, note (4).

CHAP. II.] Of Indictable Offences. 13

Therefore, notwithstanding the provisions of the Blasphemy Act, 1697 (9
& 10 Will. III. c. 35; RufEhead, c. 32), it was held that a blasphemous libel
might be prosecuted at common law (m). Where a statute makes that
felony which before was a misdemeanor only, the misdemeanor is merged,
and there can be no prosecution afterwards for the misdemeanor {v).

It is an offence at common law to obstruct the execution of powers
granted by statute {w). But where a public Act merely regulates private
rights, an indictment will not lie for the infringement of those rights :
as, if a statute empowers the setting out of private roads and the directing
their repairs, an indictment does not lie for not repairing them (x).

Disobedience of the orders of a competent tribunal is in most oases
an indictable misdemeanor at common law (y), and where a statute em-
powered the King in Council to make an order as to quarantine, and did
not annex any specific punishment for disobedience, the disobedience
was held to be a misdemeanor indictable at common law (2). By the
'Epping Forest Amendment Act, 1872,' s. 5, the Epping Forest com-
missioners may make orders prohibiting, until after their final report,
any inclosure or waste of land within the forest, subject, in their judg-
ment, to any forestal or common rights. The commissioners made a
general order prohibiting all persons from committing waste upon a piece
of land described until the final report, or until further order ; all persons
affected to be at liberty to apply to them as there might be occasion. The
defendant applied to the commissioners by counsel as a person affected,
but they refused to enter into the question raised. The defendant was
convicted upon an indictment for breach of this order, subject to the
opinion of the Court of Queen's Bench, which held that the order and
indictment were good (a).

In the case of acts commanded or prohibited by statute, three questions
arise : whether the statute intended the remedy to be (1) by indictment,
or (2) by civil proceedings, or (3) by some or other specified exclusive or
alternative statutory remedy. As to certain classes of acts commanded
or forbidden by statute in the public interest, the question arises whether
the remedy by indictment is excluded by a particular remedy given by
the statute, or is cumulative upon the statutory remedy (6). The true
rule is stated to be this : ' Where the offence was punishable by a
common-law proceeding, before the making of such statute prescribing
a particular mode of punishing it, then either method may be pursued,
as the particular remedy is cumulative, and does not exclude the common-
law punishment ; but where the statute creates a new offence by pro-
hibiting and making unlawful anything which was lawful before, and
appoints a particular remedy against such new offence by a particular
sanction and particular method of proceeding, such method of proceeding

(m) R. v. Carlisle, 3 B. & Aid. 161, 164. E,.'«. Hall [1891], 1 Q.B. 747.

(v) See R. v. Payne [1906], 1 K.B. 97, 101. (a) R. v. Walker, 13 Cox, 94, where the

R. V. Gregory, L. R. 1 C. C. R. 77, and ante, form of indictment used is given.

p. 9. (6) The term ' cumulative ' with respect

{w) R. V. Smith, 2 Dougl. 441. to this subject seems first to have been

(a;) R. V. Richards, 8 T. R. 637. used by Lord Mansfield, C.J., in R. v.

ly) R. V. Robinson, 2 Burr. 799, 804 ; and Robinson, 2 Burr. 799, 803, 805. ' Alterna-

vide post, Bk. vii. p. 542. tive ' would be a happier expression, so far

(z) R. V. Harris, 4 T. R. 269. See hereon as concerns criminal remedies.

14 Of Indictable Offences. [book i.

must be pursued and no other (c). The mention of other methods
of proceeding impliedly excludes that of indictment (d) ; unless such
methods of proceeding are given by a separate and substantive clause (e).
Thus it is now settled (/), that where a statute making a new offence,
not prohibited by the common law, appoints in the same clause a par-
ticular manner of proceeding against the offender, as by commitment
or action of debt or information, without raentioning an indictment, no
indictment can be maintained (g). It was decided on 21 Hen. VIII.
c. 1.3, s. 1, which provides that no spiritual person shall take land to farm
on pain to forfeit £10 per month ; that as the clause prohibiting the act
specified the punishment, the defendant was not hable to be indicted [h).
And it was held not to be an indictable offence to keep an ale-house
without a licence, because a particular punishment, namely, commitment
by two justices, was provided by the statute (i). And an indictment
for assaulting and beating a custom-house officer in the execution of his
office was quashed, because 13 & 14 Car. II. c. 11, s. 6, appointed a par-
ticular mode of punishment for that offence (/). So an indictment will
not lie against an overseer for wilful breaches of the duties imposed
upon him by the Eegistration of Electors Act, 1843, in preparing and
publishing voters' lists, inasmuch as the sections prescribing those duties
contain no general prohibitory clause, and sect. 51 gives the revising
barrister power to fine overseers for wilful breaches of duty, and sect. 97
gives the party aggrieved the right to bring a penal action against
the overseer for every wilful misfeasance or wilful act of commission or
omission contrary to the Act (Jc).

Matters not indictable at Common Law.— An indictment will not
lie in respect of injuries of a private nature to individuals unless they
in some way concern the King (l), or are accompanied by acts amounting
to a breach of the peace (m). Thus an indictment did not lie for
excluding commoners from a common by enclosing (n), or for infringing
the rights of the inhabitants of a particular district (o), nor for acting, not

R. «. Carlisle, 3 B. & Aid. 163. R. «. BoyaU, (Jc) R. v. HaU [1891], 1 Q.B. 747; 17

2 Burr. 832. See also Hartley v. Hooker, Cox, 278, Charles, J.

2 Cowp. 524. R. 0. Balme, 2 Cowp. 650. [l] 2 Hawk. c. 25, a. 4. R. v. Richards,

And see R. v. Faulkner, 1 Wms. Saund. 8 T. R. 637. Thi.s distinction is stated also

250e, note (3). See, however, R. v. to have been taken in R. v. Bembridge &

Wright, 1 Burr. 543. R. v. Douse, 1 Ld. Powell {[1783], 22 St. Tr. 1, cited in R. o.

Rayni. 672. R. v. Hall [1891J, 1 Q.B. 747, Southerton, 6 East, 130), an indictment

ante. p. 11 . tor enabling persons to pass their accounts

(d) 2 Hawk. c. 25, s. 4. with the pay-ofBoe in such a way as to

(e) Ante, p. 11 ; and see B. v. Briggs enable them to defraud the Government.
[1909], 1 K.B. 381; 78 L. J. K.B. 116. It was objected, that this was only a private

(/) 2 Hawk. c. 25, s. 4. Glass's case, 3 matter of account, and not indictable : but

Salk. 350. the Court held otherwise, as it related to

(g) B. V. Hall fl891], 1 Q.B. 747. the public revenue.

(h) R. V. Wright, 1 Burr. 543. (m) R. v. Bake, 3 Burr. 1731, where an

(i) Anon., 3 Salk. 25. Watson's case, indictment for forcible entry was quashed

1 Salk. 45. R. i: Edwards, 3 Salk. 27. for lack of allegations as to breach of the

R. V. Faulkner, 1 Wms. Saunders 248, peace, the indictment merely alleging a

250e, note (3). breaking and entering of the close of

{j) Anon., 2 Ld. Raym. 991 ; 3 Salk. 189. another.

So an indictment for keeping an ale-house (re) Willoughby's case [1588], Cro. Eliz.

was quashed, because 3 Car. 1, c. 3, directed 90.

a particular remedy. R. v. James, cited in (o) See R. v. Hogan, 2 Den 277 • 20 L J

R. V. Buck, 1 Str, 679. B. v. Malland, M.C. 219; po«<, p. 16.

CHAP, n.]

Of Indictable Offences.

being qualified, as a justice of peace (f) ; nor for giving short measure {q) ;
nor for an attempt to defraud, if neither by false tokens or con-
spiracy (r) ; nor for secreting another (s) ; nor for bringing a bastard
child into a parish {t) ; nor for entertaining idle and vagrant persons in the
defendant's house (u) ; nor for keeping a house to receive women with
child, and deliver them {v) ; nor for enticing away an apprentice (w).

An indictment alleging that the prisoner contriving to injure the
inhabitants of a parish, and unjustly to burthen them with the main-
tenance of her bastard child, being of very tender age and unable to move

(p) Castle's case, Cro. Jac. 644.

(q) R. V. Osborn, 3 Burr. 1697 ; but
selling by false measure is indictable. Ibid.

(r) R.' V. Channel!, 2 Str. 793 (an indict-
ment against a miller for taking and detain-
ing part of the corn sent to him); andR. v.
Bryan, 2 Str. 866. Anon., 6 Mod. 105. R.
V. Wheatly, 2 Burr. 1125 (indictment of a
brewer for delivering less beer than con-
tracted for, held bad). R. v. Wilders, 2 Burr.
1128 (cit.) (indictment against a brewer
for sending vessels of beer falsely marked
as containing more than they in fact did,
quashed). R. v. Pinkney [1730], 2 Sess.
Gas. K.B. (2nd ed.) p. 198 (indictment for
selling corn by false measure, quashed). In
R. V. Haynes, 4 M. & S. 214, an indictment
was found against a miller, for receiving
good barley to grind at his mill, and de-
livering a mixture of oat and barley meal,
different from the produce of the barley,
and which was musty and unwholesome.
For the prosecution was cited a note in
1 Hawk. c. 71, s. 1, referring to R. v. Wood
[1740], 2 Sess. Cas. K.B. (2nd ed.) p. 277,
where it is laid down, that changing corn by
a miller, and returning bad corn instead of
it, is punishable by indictment ; for, being
in the way of trade, it is deemed an offence
against the public : but it was held that
the indictment would not lie. Ellen-
borough, C. J., in giving judgment, said, that
if the allegation had been that the miller
delivered the mixture as an article for the
food of man, it might possibly have sus-
tained the indictment, but that he could
not say that its being musty and unwhole-
some necessarily and ex vi termini imported,
that it was for the food of man ; and it was
not stated that it was to be used for the
sustentation of man, but only that it was a
mixture of oat and barley meal. He added :
' As to the other point, that this is not an
indictable offence, because it respects a
matter transacted in the course of trade,
and where no tokens were exhibited by
which the party acquired any greater de-
gree of credit, if the case had been that this
miUer was owner of a soke-mill, to which
the inhabitants of the vicinage were bound
to resort, in order to get their corn ground,
and that the miller, abusing the confidence
of this his situation, had made it a colour
for practising a fraud, this might have pre-

sented a different aspect ; but as it now is,
it seems to be no more than the case of a
common tradesman, who is guilty of a
fraud in a matter of trade or dealing ; such
as is adverted to in R. v. Wheatley, and the
other cases, as not being indictable.' And
see also R. v. Bower, 1 Cowp. 323, as to the
point that for an imposition, which a man's
own prudence ought to guard him against,
(in indictment does not lie, but he is left to
his civil remedy. But in R. v. IJixon, 3 M.
& S. 11, it was held, that a baker who sells
bread containing alum, in a shape which
renders it noxious, is guilty of an indictable
offence, if he ordered the alum to be intro-
duced into the bread, although he gave
directions for mixing it up in the manner
which would have rendered it harmless.

(s) R. V. Chaundler, 2 Ld. Raym. 1368 ;
an indictment for secreting A., who was
with child by the defendant, to hinder her
evidence, and to elude the execution of the
law for the crime aforesaid. Sed quaere.

(<) R. V. Warne, 1 Str. 644, it appearing
that the parish could not be burthened, the
child being born out of it. But see a prece-
dent of an indictment for a misdemeanor at
common law, in lodging an inmate, who
was delivered of a bastard child, which
became chargeable to the liberty. 2 Chit.
Cr. L. 700. And see also id. 699, 4 Wentw.
353, and Cro. Circ. Comp. (7th edit.)
648, precedents of indictments for misde-
meanors at common law, in bringing such
persons into parishes in which they had no
settlements, and in which they shortly died,
whereby the parishioners were put to ex-
pense. In one case it is stated to have been
held, that no indictment will lie for pro-
curing the marriage of a female pauper
with a labouring man of another parish,
who is not actually chargeable. R. v.
Tanner, 1 Esp. 304. But if the facts of the
case will warrant a charge of conspiracy,
the offence would be substantiated, if under
the circumstances the parish might possibly
be put to expense. See 1 Nolan, P. L.
Settlement by Marriage, s. I. in the notes.
R. V. Seward, 1 A. & E. 706 ; 3 N. & M.
557.

(u) R. V. Langley, 2 Ld. Raym. 790.

(v) R. V. Macdonald, 3 Burr. 1645.

(w) R. V. Daniel, 1 Salk. 380.

16 Of Indictable Offences. [book l

or walk, unlawfully did abandon the said child in the said parish without
having provided any means for the support of the said child, the said
child not being settled in the said parish, was held bad, because the mere
abandonment, the possible consequence of which might be to injure the
parish, was not indictable (a;).

Where an indictment stated that the prisoner intending to burthen
the inhabitants of a parish with the maintenance of her bastard child
abandoned the said child in the said parish, and it appeared that the
prisoner left the child in a dry ditch in a field in the parish ; there was
a pathway in the field by the ditch, and a lane separated from the ditch
by a hedge neither of which was much frequented ; Parke, B., held that
there was no ground for imputing any intention to burthen the parish,
as it was not placed in a position where it was likely to come to the
knowledge of the ofiBcers of the parish {y).

The administration of a poisonous ingredient with intent to hurt
and damage the body of another, whereby sickness and disorder of
his body is caused, was not indictable at common law {z)., but such an
act is punishable under 24 & 25 Vict. c. 100, s. 24 (post, Bk ix. c. iv.).

Cases of non-feasance and particular wrong done to another are not
in general the subject of indictment ; and it has been doubted whether
a clergyman is indictable for refusing to marry persons who were lawfully
entitled to be married (a) ; but circumstances may exist of mere non-
feasance towards a bedridden or helpless person or a child of tender
years (such as the neglect or refusal to provide sufficient food and sus-
tenance for such person being under the charge of the accused), which
may amount to an indictable offence at common law if death or serious
injury to health results from the neglect (6).

Where a mayor of a city, being a justice, made an order that a company
in the city should admit one to be a freeman of that corporation, and the
master of the company, being served with the order, refused to obey it,
such refusal was not the subject of indictment (c). And an indictment
will not lie for not curing a person of a disease according to promise, for it
is not a public offence, and no more in effect than a ground for an action (d).
To keep an open shop in a city, not being free of the city, contrary to the
immemorial custom there, has been held not to be indictable (e).

Trespasses. — A mere act of trespass (such as entering a yard and
digging the ground, and erecting a shed or cutting a stable) committed
by one person, unaccompanied by any circumstances constituting a
breach of the peace, is not indictable (/). And an indictment was held

(x) R. V. Hogan, 2 Den. 277. The in- 3 Salk. 189. In an Anon, case, 2 Salk. 522,
dictment was also held bad, because it did it appears to have been held, that if a pawn-
not allege that the child suffered any injury. broker refuses, upon tender of the moiley,

(y) B. V. Renshaw, 2. Cox, 285. to deliver the goods pledged, he may be

(z) R. V. Hanson, 2 C. & K. 912, Williams indicted. But see R. v. Jones, 1 Salk. 379,

and CressweU, JJ. As to infecting another contra.

with an infectious or contagious disorder, (e) R. v. Gorge, 3 Salk. 188. Nor is it

see R. V. Clarence, 22 Q.B.D. 23. an indictable offence to exercise trade in a

(n) R. V. James, 2 Den. 1. The point borough contrary to the bye-laws of that

was not decided, as there had been no borough. B. v. Sharpless, 4 T. R. 777.

auffioient demand to marry. (/) R. v. Storr, 3 Burr. 1698. The in-

(6) R. V. Instan [1893], 1 Q.B. 450. dictment was quashed on motion. Cf. R.

(d) B. V, Bradford, 1 M. Baym. 366 ; ing the close of another.

CHAP. II.] Of Indictable Offences. 17

not to lie against one person for pulling off the thatch from the house of
another, who was in peaceable possession {g). An indictment for taking
away chattels will not lie unless it states or imports that such a degree of
force was used as made the taking an offence against the public. Where
an indictment averred that the defendant with force and arms unlawfully,
forcibly, and injuriously seized, took, and carried away, of and from
J. S., and against his will, a paper-writing purporting to be a warrant to
apprehend the defendant for forgery, Perryn, B., held that the indictment
was not valid, as it charged nothing but a mere private trespass, and
neither the King nor the public appeared to have any interest therein (A).

But where an indictment stated the entering a dwelling-house, and
vi et armis and with strong hand turning out the prosecutor, the Court
refused to quash it (i). And an indictment will lie for taking goods
forcibly, if such taking is proved to be a breach of the peace (j) : and
though such goods are the prosecutor's own property, yet, if he takes them
in that manner, he will be guilty (k).

Besides the common-law remedy by indictment for treason, felony,
or misdemeanor, there are also the following other remedies : —

Coroner's Inquisition. — An inquisition taken by a coroner and his jury
charging wilful murder or manslaughter (I), or concealment of treasure
trove (m), is equivalent to an indictment for such offence.

Criminal Information. — Misdemeanors (but not treasons or felonies) may
be prosecuted in the High Court of Justice without the intervention of a grand
jury, on information filed ex officio by the Attorney-General (n), or on infor-
mation filed by the King's Coroner and Attorney by leave of the Court (o).
This remedy is now regarded as extraordinary, and is rarely used (p). The
procedure is regulated by the Crown Office Eules, 1906, rr. 35-39, 79, 83, 84.

Summary Proceedings. — ^In the case of a very large number of offences
newly created by statute the sole criminal remedy is by proceedings for a
summary conviction under the Summary Jurisdiction Acts, 1848 to 1899,
as amended by the Children Act, 1908 (8 Edw. VII. c. 67) : and there is also
much legislation giving power to convict summarily of certain forms of
offence, particularly public nuisances, which at common law are punishable
only on indictment. The power to convict summarily of the latter class
of offence is alternative to and not exclusive of the power to indict {q).

Election to be tried on Indictment. — By the Summary Jurisdiction
Act, 1879 (42 & 43 Vict. c. 49), s. 17, subs. 1, ' A person when charged
before a Court of Summary Jurisdiction with an offence in respect of the
commission of which an offender is liable on summary conviction to be
imprisoned for a term exceeding three months (r), and which is not an
assault, may, on appearing before the Court and before the charge is

{g) R. V. Atkins, 3 Burr. 1706. (») Short & MeUor, Cr. Pr. (2nd ed.) 151.

(A) R. V. Gardiner, Salisbury, 1780, MS. Archb. Cr. PI. (23rd ed.) 142.

Bayley, J. (o) 4 & 5 W. & M. o. 18. Short & MeUor,

(«•) R. V. Storr, 3 Burr. 1698. Cr. Pr. (2nd ed.) 151. Arohb. Cr. PI. (23rd

(j) Anon., 3 Salk. 187. ed.) 144.

(i) Ibid. See Blades v. Higgs, 10 C.B. (p) See Archbold, Cr. PI. (23rd ed.) 145.

(N. S.) 713; 12 C.B. (N. S.) 501; 11 Encyo. Laws of England (2nd ed.) vol. vii.

H. L. C. 621. tit. ' Information,' p. 201.

(I) See the Coroners Act, 1887 (50 & 51 (?) Vide post, Bk. xi. cc. iu. iv.

Vict.), c. 71. ('') See Carle v. Elkington, 17 Cox, 557.

(m)' Vide post, Bk. iv. p. 339.

VOL. I. ^

18 Of Indictable Offences. LBOOK i.

gone into, but not afterwards, claim to be tried by a jury, and thereupon
. . . the ofience shall as respects the person so charged be deemed to be
an indictable ofience, and if the person so charged is committed for trial
or bailed to appear for trial, shall be prosecuted accordingly . . . ' (s).

Similar provisions are made by two earlier Acts : the Conspiracy
and Protection of Property Act, 1875 (38 & 39 Vict. c. 86), s. 9 ; and the
Prevention of Cruelty to Animals Act, 1876 (39 & 40 Vict. c. 77), s. 15 :
and by sect. 1 (6) of the Merchandise Marks Act, 1887 (50 & 51 Vict,
c. 28), 'Any person charged with an ofience under this section (relating to
false tradei,marks and false trade descriptions) before a Court of Summary
Jurisdiction shall, on appearing before the Court, and before the charge
is gone into, be informed of his right to be tried on indictment, and if he
requires be so tried accordingly' (t). As to summary trial of corrupt or
illegal practices at elections see 46 & 47 Vict. c. 51, s. 43.

The offences to which sect. 17 applies are too numerous for enumera-
tion here, and, so far as material, are mentioned under the appropriate
titles, fost (u). By subsect. 2, as interpreted by the judges, the justices
must inform the accused of his election, so soon as it appears that by
reason of a previous conviction or otherwise the accused is liable to more
than three months' imprisonment, and, if they do not, the summary con-
viction is void('u). By subsect. 3, as amended in 1908, the section is not
to apply to the case of a child under fourteen, unless the parent or
guardian of the child is present. If the parent, etc., is present, the
inquiry as to election is made of him, and the election is made by him {w).

Where an accused person elects, under sect. 17, to be tried by a jury,
the subsequent procedure before justices is the same as that which is
applicable to the case of indictable offences, and not that applicable to
summary proceedings. The accused person may therefore be committed
to take his trial in respect of any indictable offence disclosed by the deposi-
tions, and, in cases not falling within the Vexatious Indictments Acts,
counts may be added to the indictment in respect of any indictable
offence disclosed by the depositions, although the accused was not sum-
moned before the justices in respect of such offence (x). The indictment
need not include any reference to the election (y), but where the offence
is punishable by more than three months' imprisonment by reason of a
previous conviction, the previous conviction is charged in the indictment
in the same manner as in ordinary indictable cases. But the previous
conviction may not be proved until after conviction of the subsequent
offence, unless its proof is essential to the proof of the complete or subse-
quent offence (z).

(s) Aa to costs see post, Bk. xii. c. v. T. L. R. 337, 78 L. J. K.B. 482, dissenting

{t) See R. V. Phillips, 65 J. P. 41. The from R. v. Fowler, 64 L. J. M. C. 9

Vexatious Indictments Act applies (50 & (w) Provision for the summary trial

51 Vict. c. 28, B. 13), vide post, Bk. xii. of children under fourteen, for all offences

c- i- „ ^ except homicide, is made by the Summary

(m) ForexamplesseeR.1,. Brown [1895], Jurisdiction Act, 1879, and the Children

1 Q.B. 119 (' Betting Houses '). R. v. Pen- Act, 1908 (8 Ed. VII. o. 67), s. 128 and the

fold [1902], 1 K.B. 547. A Ust, apparently liability of children to imprisonment is

complete, is given in Douglas's Summary taken away by the latter Act (s. 102)

Jurisdiction Procedure (9th ed.). (x) R. v. Brown, ubi sup.

(v) R. V. Cookshott [1898], 1 Q.B. 582. (i/) R. v. Chambers, 65 L. J. M..<X 214

R. V. Beesby [1909], 1 KB. 849; 25 (z) B,. v. Peniold, ubi sup.

(18a)

CANADIAN NOTES.

INDICTABLE OFFENCES.

Felony and Misdemeanour. — The distinction between "felony" and
"misdemeanour" is abolished. Code see. 14.

Misdemeanour Practice to Prevail. — When a certain practice would
have been permissible in case of misdemeanour, and not in case of
felony, the practice has been to apply the rule as in cases of misde-
meanour, and such is the intention of fixe Code. R. v. Pox, 7 Can. Cr.
Cas. 457.

Prisoner's Testimony as Witness at Another Trial. — Consent of
prisoner's counsel. The distinction between felony and misdemeanour
having been abolished, the consent of counsel for the accused which
before the Code would have been effective in misdemeanours only, is
now effective, although the offence charged was formerly a felony.
And evidence given on the trial of another person including the
evidence of the prisoner then called as a witness, may with the consent
of the prisoner's counsel be admitted in evidence both for and against
the prisoner. R. v. Fox, 7 Can. Cr. Cas. 457 (Ont.)

Felony or Misdemeanour. — A person committed for trial for an
indictable offence which was a felony before the Code is not entitled
as of right to bail. For indictable offences which were misdemeanours
before the Code the accused committed for trial is entitled to bail as a
matter of right. Ex parte Fortier, 6 Can. Cr. Cas. 191.

A provincial statute prior to Confederation, providing for the
discharge from imprisonment in default of indictment of an accused
person committed for a "felony" will apply equally to cases which
were misdemeanours before the abolition of the distinction between
felony and misdemeanour. R. v. Cameron (1897), 1 Can. Cr. Cas. 169
(Que.)

Enactments regulating the procedure in Courts are usually deemed
imperative, and not merely directory. R. v. Riel (No. 2) (1885), 1
Terr. L.R. 23, 44.

Coroner's Inquisition. — No one shall be tried on any coroner's
inquisition. Code see. 940.

Upon a verdict of guilty being found before him, it is the duty of a
coroner to direct by warrant that a person charged with manslaughter
or murder shall be taken into custody, and conveyed before a magis-

186 Indictahle Offences — Information, etc. [book i.

trate or justice ; or the coroner may direct that the accused enter into
recognizances, with or without bail, to appear before a magistrate or
justice. Code sec. 667.

A coroner's subpoena to a witness cannot be served outside the
coroner's jurisdiction. Re Anderson & Kinrade, 13 O.W.R. 1082.

Criminal Information. — "Indictment" includes "information" —
Code sec. 2(16)— and "finding the indictment" includes also "exhibit-
ing an information" and "making a presentment" — Code sec. 5(a).
' ' Attorney-General ' ' includes ' ' Solicitor-General. " Code sec. 2 (2 ) .

Information. — The Superior Courts in Canada grant criminal
information in proper cases on motion. See the following cases for
statements of principles and practice. R. v. Ford (1853), 3 U.C.C.P.
209; R. V. Ed. Whelan (1863), 1 P.E.I. 223; Re Recorder, etc., of
Toronto (1864), 23 U.C.Q.B. 376; R. v. PlimsoU (1873), noted in 12
Ch. J. 227; R. V. Thompson ^1874), 24 U.C.C.P. 252; R. v. Kelly
(1877), 28 U.C.C.P. 35; R. v. Wilkinson (1878), 42 U.C.Q.B. 492; R.
V. Wilson (1878), 43 U.C.Q.B. 583.

Summary Proceedings. — Code, Pt. 15, sees. 705-770. Summary
Convictions.

Election to be Tried on Indictment or Summarily. — Code, Pt. 16,
sees. 771-799. Summary Trial of Indictable Offences. Certain offences
can be tried summarily without the consent of the accused (sees. 774,
775, 776). In other offences, the consent of the accused to be tried
summarily must be obtained after the charge is made (sec. 778). The
magistrate has power to decide in any case not to proceed summarily.
Section 784.

Trial of Juvenile Offenders for Indictable Offences. — Code sees.
800-821. An Act respecting Juvenile Offenders, Delinquents, etc.
7 & 8 Edw. VII. (Can.) eh. 40.

Speedy Trial of Indictable Offences. — Code sees. 822-842. The
accused has the option to be tried before a Judge without a jury, or in
ihe ordinary way. Section 827(&).

(19)

CHAPTEE THE THIRD.

OF CRIMINAL JURISDICTION.

It is necessary to distinguish between national or territorial jurisdiction
to try for crime, and venue, i.e. the proper district of England from
which the jury must be summoned to try a crime which is within the
jurisdiction of the English Courts [a). Consequently, this chapter
necessarily to some extent includes procedure as well as jurisdiction.

In the view of English law, crime is primarily local, i.e., depends on
the law of the place in which it is committed, and not on the nationality
of the person who commits it (6). On this principle aliens are amenable
to the English criminal law, in respect of crimes committed in England (c),
and British subjects are not amenable to that law in respect of
offences committed outside England, unless committed within the
Admiralty jurisdiction, or unless specially provided for by statute.

At common law the jurisdiction of English Courts to try persons
accused of crime is regulated by the following rules : —

1. Courts of the common law could try only ofiences committed within

the body of the realm. Offences committed by Englishmen
outside the body of the realm were cognisable, if at all, only by
the admiral or by the constable and marshal.

2. Indictments for crimes committed within the realm could be found

and tried only by juries summoned from the county, liberty,
borough, or other judicial area within which the crime or an
integral part of it was alleged to have been committed {d). This
rule created difficulties in the administration of justice where
the acts constituting the crime were not all committed within
the same judicial district. As regards larceny, this difficulty
was got over by treating common law larceny as committing in
any county in England into which the thief carried the stolen
goods (e). As regards homicide, cases in which the fatal wound
was given in one county and the death took place in another,
were met by legislation, 2 & 3 Edw. VI. c. 24, s. 2, under which
the trial was to be in the county where the death occurred.
It seems to have been established as a common-law rule that a mis-
demeanor committed partly in one county and partly in another could

(a) See British South Africa Co. v. Com- De Jager v. Att.-Gen. of Natal [1907], A.C.

panhia de Mofambique [1893], A.C. 602. 326.

(6) Sirdar Gurdyal Singh v. Rajah of (d) R. v. Weston, 4 Burr. 2507, 2511,

Faridkote [1894], A.C. 670, Earl of Sel- Lord Mansfield.

borne. (e) This rule did not apply where the

of homicide arising out of a duel between Vide -post, vol. ii. p. 1307.
foreigners in England. As to treason see

C 2

20 Of Criminal Jurisdiction. [book i.

be tried in either county (/). 2 & 3 Edw. VI. c. 24, s. 2, was repealed in
1826 {g), and the following general rules were applied both to felonies
and misdemeanors : ' For the more effectual prosecution of offences
committed near the boundaries of counties, or partly in one county and
partly in another, it is enacted by the Criminal Law Act, 1826 (7 Geo. IV.
c. 64), s. 12, " that where any felony or misdemeanor shall be committed
on the boundary or boundaries of two or more counties, or within the
distance of five hundred yards of any such boundary or boundaries (A),
or shall be begun in one county and completed in another, every such
felony or misdemeanor may be dealt with, inquired of, tried, determined
and punished in any of the said counties, in the same manner as if it had
been actually and wholly committed therein " ' {i).

The term 'county' (/) in these enactments includes not only counties
at large, but counties of cities or towns (k), but does not include limited
jurisdiction within counties (J,). The section does not apply to offences
partly committed on the high seas or on land outside England (m).
The effect of the section is to put an end to conflicts of jurisdiction between
two counties in cases to which the section applies. It authorises the
laying and trial of the offence in either county (w), but not laying the
offence in one county and trying it in the other (o).

Offences committed on a Journey or Voyage. — By the Criminal Law
Act, 1826 (7 Geo. IV. c. 64), s. 13 : ' Where any felony or misdemeanor
shall be committed on any person, or on or in respect of any property
in or upon any coach, waggon, cart, or other carriage whatever employed
in any journey, or shall be conimitted on any person, or on or in respect
of any property on board any vessel whatever employed on any voyage
or journey upon any navigable river, canal, or inland navigation, such
felony or misdemeanor may be dealt with, inquired of, tried, determined,
and punished in any county, through any part whereof such coach,
waggon, cart, carriage, or vessel shall have passed, in the course of the

(/) R. V. Burdett [1820], 3 B. & Ad. 717; committing the offence in the county where

4 B. & Ad. 95. the felony was completed ; but it was held

(g) 7 Geo. IV. o. 64, s. 32. that the section extended to the case. The

(h) Measured geometrically in a, direct clerk of arraigns had consulted Littledale,

line or as the crow flies. R. v. Welsh, J., who thought that the indictment ought

1 Mood. 175, Parke, B. Vide ante, p. 4. to be preferred in the city, and it had been

(i) Cf. the somewhat similar provisions of so preferi:ed accordingly. C. S. G.

the Fugitive Offenders Act, 1881 (44 & 45 (I) In B. v. Wood [1841], 5 Jur. 225,

Vict. c. 69), ss. 20, 39, as to offences com- where a larceny was committed in the City

mitled on the boundary of two adjoining of London, but within 500 yards of the

British possessions outside the Britisli boundary of the county of Surrey and of

Islands. the borough of Southwark, it was held that

(j) As to its meaning in modern Acts the offence could not be tried by the

vide 52 & 53 Vict. c. 63, s. 4, ante, p. 3. quarter sessions for the borough of South-

(k) R. V. Jones, Worcester Lent Assizes wark. Cf. Mouflet v. Cole, 42 L. J. Ex. 8.

[1830], Jervis, K.C.MSS. C. S. G. Upon an (m) See R. v. Ellis [1899], 1 Q.B. 230:

indictment for manslaughter, found by the goods obtained in England by false pre-

grand jury of the county of the city of W., tences in Scotland. R. v. Oliphant [1905],

alleging the blow which caused the death to 2 K.B. 67 : falsification of account-books

have been struck in the county of Worces- in England procured by an employee who

ter, it was objected that the words, ' began was in France.

in one county and completed in another,' (n) R. v. EUis [1899], 1 Q.B. 230, 234

did not apply to such a case, as the word 239, Wills, J. All the earlier authorities

' completed ' necessarily imported some are there discussed,

cative and continuing agency in the person (o) R. v. Mitchell, 2 Q.B. 636, 643.

CHAP. III.] Offences on Journeys. 21

journey or voyage during which such felony or misdemeanor shall have
been committed, in the same manner as if it had been actually committed
in such county ; and in all cases where the side, centre, or other part
of any highway, or the side, bank, centre, or other part of any such
river, canal, or navigation shall constitute the boundary of any two
counties, such felony or misdemeanor may be dealt with, inquired of,
tried, determined, and punished in either of the said counties, through
or adjoining to, or by the boundary of any part whereof such coach,
waggon, cart, carriage, or vessel shall have passed, in the course of the
journey or voyage, during which such felony or misdemeanor shall
have been committed, in the same manner as if it had been actually
committed in such county ' {f).

This enactment is general, and applies to any carriage whatever
employed in any journey {q). Where the prisoners were tried for larceny
of oats, &c., the property of their masters, it appeared that they had
been sent with a waggon from a railway station, then in Middlesex, to
Woolwich, then in Kent, that the iisual quantity of oats for the horses
was given out to them, and put into the waggon in nosebags, and that
the prisoners sold the oats at Woolwich. It was held that they were
triable in Middlesex ; for the ' object of the statute was to enable a
prosecutor, whose property is stolen from any carriage on a journey,
to prosecute in any county through any part of which the carriage shall
have passed in the course of that journey ; because, in many cases,
it might be quite impossible to ascertain at what part of the journey
the offence was actually committed ' (r).

The prisoner had acted as guard of a coach from P. in Cumberland
to K. in Westmoreland, and was entrusted with a banker's parcel con-
taining bank-notes and two sovereigns ; on changing horses in West-
moreland, he carried the parcel to a privy, and while there took out
of it the sovereigns. Parke, B., held that as the act of stealing was
not ' in or upon the coach,' the case was not within the statute, and
that the felony having been committed in Westmoreland, the indictment
ought to be preferred in that county (s).

The prosecutor missed a dressing-case which had been in a railway
carriage with him. The prisoner had accompanied the train, and had
stated that he had found the dressing-case in a first-class carriage at a
station in Staffordshire, and that he carried it to the engine and gave
it to another prisoner, who opened it with a wrench, and on their return
to Shrewsbury gave him some of the articles as his share. It was argiied
that the prisoner's statement showed that the larceny was not committed
during the journey ; for the removal of the dressing-case from the carriage
did not constitute the larceny, according to the prisoner's statement,
but it consisted in the distribution of the property at Shrewsbury ; but
WilUams, J., held that there was evidence from which the jury might

(p) Cf. the similar provisions of the Post Islands).
Office Act, 1908 (8 Edw. VII. c. 48), (?) B. v. Sharpe [1854], Dears. 415, 417.

s. 72 (1), and the Fugitive Offenders Jervis, C.J.
Act, 1881 (44 & 45 Vict. c. 69), ss. 21, 39, as (r-) Id. ibid.

to offences committed on a journey between («) R. v. Sharpe [1836], 2 Lew. 233.

two British possessions (outside the British

22 Of Criminal Jurisdiction. [book i.

find that the dressing-case was abstracted during the journey ; as the
evidence, with the exception of the prisoner's statement, was consistent
with either supposition {t).

Where on a trial at the Central Criminal Court for assault, it appeared
that the prosecutrix and the defendant left Brighton together by a
train which ran to New Cross, within the jurisdiction of the Central
Criminal Court ; and the assault was committed in Sussex, and the
prosecutrix at Three Bridges left the carriage in which she had been
previously riding with the defendant, and travelled in another carriage
to New Cross {u) ; it was held that by the combined operation of
sect. 13 (v), and the Central Criminal Court Act, 1834 (4 & 5 Will.
IV. c. 36) (w), the case might be tried at the Central Criminal Court.
There was but one journey, and although the carriages were distinct,
they all formed but one conveyance, and the fact that the prosecutrix
and defendant rode in different carriages after the assault did not affect
the question ; it was the same as if they had occupied different parts
of the same carriage. The words ' through which any carriage shall
have passed ' in sect. 13, refer to the time of the trial, and not to a time
antecedent to the commitment of the offence, and therefore make the
offence triable at any place within the limits of the beginning and end
of the journey, and do not confine the trial to any county through which
the train had passed up to the time of the offence {x).

In the enactments above set forth, the term ' county ' referred to the
geographical counties as then existing (including counties of cities or
towns). The boundaries of most, if not all, counties in England have
since 1826 been altered for administrative purposes and for Parliamentary
elections. The effect of these changes upon the judicial county may
be stated thus :

The changes of area effected by the Parliamentary Boundaries Act,
1832 (2 & 3 Will. IV. c. 64) [y), and the Municipal Corporations Act, 1835
(5 & 6 Will. IV. c. 76) (z), had the effect of removing completely from
one county to another, for all purposes, the transferred areas {a). Where
the prisoner was indicted for wounding with intent to do grievous bodily
harm, at a place which was added to the borough of Haverfordwest (&),
by the Acts last above mentioned, and declared to be part of the borough,
it was held that the prisoner might be tried by a jury of the borough (c).

By the Counties (Detached Parts) Act, 1839 (2 & 3 Vict. c. 82) s. 1, ' it

(t) R. V. Pierce [1852], 6 Cox, 117. Bexley, 70 J.P. 263 (a trial at the Central

[u) Then in Kent, now in the County of Criminal Court for kilUng a child found

London. dead at the end of a railway journey).

(v) Ante, p. 20. {y) See 31 & 32 Vict. o. 46 ; 48 & 49

{w) Except when extended under the Vict. o. 23.
Winter and Spring Assizes Acts, the (z) Repealed in 1882 (45 & 46 Vict. u. 50,

jurisdiction of the Central Criminal Court s. 5).

is confined to the City of London, the (a) R. w. Gloucestershire JJ. [1836], 4 A.

counties of London and Middlesex, and & E. 689. This decision related to the

parts of Essex, Surrey, and Kent. 4 & 5 county of the city of Bristol, and arose on

Will. IV. 0. 36, s. 2 ; 51 & 52 Vict. c. 41, the transfer of Clifton from Gloucestershire

s. 89. to the city of Bristol.

{x) R. V. French, 8 Cox, 252, the Re- (b) Which is a county in itself by 34 & 35

oorder. An objection that 7 Geo. IV. c. 64, Hen. VIII. c. 26, s. 61.
s. 13, did not apply to railway trains seems (c) R. v. PiUer, 7 C. & P. 337, Coleridge, J.

to have been tacitly overruled. Cf . R. v.

CHAP. III.] Detached Parts of Counties. 23

shall be lawful for any justice or justices of the peace acting for any
county, to act as a justice or justices of the peace in all things whatsoever
concerning or in any wise relating to any detached part of any other
county {d), which is surrounded in whole or in part by the county for
which such justice or justices acts or act ; and that all acts of such justice
or justices of the peace, and of any constable or other officer in obedience
thereto, shall be as good, and all offenders in such detached part may
be committed for trial, tried, convicted and sentenced, and judgment
and execution may be had upon them in like manner as if such detached
parts were to all intents and purposes part of the county for which
such justice or justices acts or act ; and all constables and other officers
of such detached parts are hereby required to obey the warrants, orders,
and acts of such justice or justices, and to perform their several duties
in respect thereof, under the pains and penalties to which any constable
or other officer may be liable for a neglect of duty ' (e).

By sect. 3 : ' The word " county " shall be taken to mean and include
county, riding, division, and parts of a county having a separate com-
mission of the peace ' (/).

The grand jury of the county, which wholly surrounds a detached
part of another county, may find an indictment for an offence committed
in such detached part, and the prisoner may be tried by a jury of such
surrounding county. The prisoner was indicted at the Dorsetshire assizes
for larceny in a parish of Somersetshire, entirely detached from it, and
surrounded by Dorsetshire. He had been committed by a Dorsetshire
magistrate to the gaol of that county. The indictment laid the offence
to have been committed in the parish of H., the same being a detached
part of Somersetshire, surrounded in the whole by Dorsetshire ; the
venue in the margin was Dorset. The indictment did not state that
the prisoner was in Dorsetshire, or that he was committed by a Dorset-
shire magistrate. Fitzherbert objected, first, that this should have
appeared on the face of the indictment ; and, secondly, that the grand
jury of Dorsetshire could not find the bill, as there were no words in the
statute giving any power to find the bill ; but Rolfe, B., overruled the
objection, saying that it would strike the Act out of the statute-book (y).

(d) For the purposes of county police, (g) R. v. Loader, ex relatione Mr. Fitz-
these detached parts and all liberties and herbert. Reference was made arguendo to
franchises (except municipal boroughs 7 Geo. IV. c. 64, s. 12, and 4 & 5 Will. IV.
having a separate police force) are treated c. 36. S. C. Talf. Dick. Q.S. 188, where a
as part of the surrounding county. 2 & 3 jMcercis added to the decision by the learned
Vict. c. 93, s. 27. That Act does not editor ; but with all respect to his opinion,
apply to the Metropolitan Police district it would seem that the decision is perfectly
(s. 28). correct, as the object of the Act clearly was

(e) This Act was declared by 21 & 22 to render prisoners triable in the surround-
Vict. c. 68, s. 2 (rep. S. L. R. 1892), to ex- ing county, and to prevent expense, and
tend to parts of a county which did not the effect of a contrary decision would be
form part of the county before the passing that they never could be so tried Li such
of 7 & 8 Vict. c. 101, in like manner as if county, except where an indictment had
they had always formed part of the been found by a grand jury of the county
county. to which the detached part belonged ;

( / ) Sect. 2, which provides for payment which would greatly add both to the incon-

of expenses of prosecutions by the county venience and expense, which it was intended

to which the detached part belongs, seems to avoid. It is difficult also to see how it

to be superseded by 8 Edw. VII. c. 15, foat, can be correctly said that a person is ' tried

Bk. xii. 0. V. tit. ' Costs.' in like manner as if such detached part

24 Of Criminal Jurisdiction. [book i.

By the County Police Act, 1840 (3 & 4 Vict. c. 88), s. 2 : 'It shall be
lawful for the justices of any two or more neighbouring counties in their
several general or quarter sessions assembled, frojm time to time to agree
that such parts of their several counties as to them shall seem fit, shall,
for the purposes of the County PoHce Act, 1839, be considered as forming
part of any other of the said counties ; and whenever any such district
shall be so transferred, for the purpose of the said Act, from one county
to another, with the consent of the justices of both the last-mentioned
counties, such district shall be considered, for the purposes of the said
-Act, as if it were detached from the county to which it "belongs, and
wholly surrounded by the county to which it is so transferred, and all
the provisions contained herein, or in the said Act, or in the Counties
(Detached Parts) Act, 1839 (supra), shall be taken to apply to such
transferred districts ' (h).

By an Act of 1844 (7 & 8 Vict. 101), it was declared that every part of
a county in England and Wales which is detached from the main body of
the county should be considered as forming, for all purposes, part of the
County in which it was included for Parliamentary elections, under the
Parliamentary Boundary Act, 1832. This Act was repealed as spent
in 1891 (S. L. E.) (i), but the repeal does not affect its past operation (/).

By the Indictable Offences Act, 1848 (11 & 12 Vict. c. 42), s. 7 (which
is incorporated into the Summary Jurisdiction Act, 1848 (11 & 12 Vict,
c. 43), s. 6 (k) : 'The acts of any justice or justices, and of any constable or
officer in obedience thereto, shall be* as good in relation to any detached
part of any county which is surrounded in whole or in part by the
county for which such justice or justices acts or act, as if the same were
to all intents and purposes part of the said county.'

By the Liberties Act, 1850 (13 & 14 Vict. c. 105), provision was made
for the union for judicial and other purposes of liberties with the counties
in which they lie, and all Hberties seem now to have been merged except
those of Eipon, and the Soke of Peterborough, and the Isle of Ely.

The readjustment of county boundaries, with the exceptions above
stated, has been effected by statutes confirming provisional orders. The
Local Government Act, 1888 (51 & 52 Vict. c. 41), after providing for the
readjustment of county boundaries for administrative purposes, provides,
by sect. 59 (2) : ' that a place which is part of an administrative county for
the purposes of the Act shall, subject as in this Act mentioned, form part
of that county for all purposes, whether sheriff, lieutenant, custos
rotulorum, justices, militia, coroner, or other ' (I). This enactment does

were to all intents and purposes part of the (50 & 51 Vict. i-. 71).

county for which such justice acts,' unless {j) Vide ante, p. 5.

he is tried on an indictment found by the [k) By 26 & 27 Vict. c. 77, s. 1, the

grand jury of such county ; for that is the effect of s. 0 was declared not to have

mode in which he would be tried if the part been cut down by 11 & 12 Vict. c. 43, s. 35.

were to all intents part of that county. [I) Then follow provisions that each of

C. S. G. the entire counties of York, Lincoln,

{h) The Act of 1840 did not affect Sussex, Suffolk, Northampton, and Cam-
licensing jurisdiction. R. v. Worcester- bridge shall continue to be one county for
shire JJ. [1899], 1 Q.B. 59. those purposes so far as it was one county

(»') It did not apply to inquests, which at the passing of the Act, and a saving as

were regulated by 6 & 7 Viet. c. 12, and are to the then existing privileges of cities or

now regulated by the Coroners Act, 1887 boroughs as to sheriffs, justices, &c.

CHAP. III.] Counties of Cities and Towns. 25

not expressly refer to assizes. The corresponding provision of the Local
Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37), s. 69, makes express
reference to assizes, quarter or petty sessions, and jurors, and an Order
in Council has been made adjusting the assizes to the counties as bounded
under the Act of 1898.

In England the jurisdiction of courts of assize depends on the com-
mission, and in the case of winter and spring assizes on the Orders in
Council issued under the Winter and Spring Assizes Acts (m).

Counties of Cities. — -Besides the geographical counties at large which
exist for judicial as distinct from administrative purposes (n), the following
cities and boroughs are counties in themselves (o) : Berwick-on-Tweed,
Bristol,* Caermarthen,* Canterbury, Chester, Exeter,* Gloucester,
Haverfordwest,* Kingston-upon-Hull, Lichfield, Lincoln,* London City,
Newcastle-upon-Tyne,* Norwich,* Nottingham,* Poole, Southampton,
Worcester,* and York.* All these cities, &c., have separate quarter
sessions ; but at present separate assizes are held only for those marked
with an asterisk.

Until 1798 there was an exclusive right that offences arising within
the county of a city or town corporate should be tried by a jury of persons
residing within the limits of the city or town. By the Counties of
Cities Act, 1798 (38 Geo. III. c. 52), provision was made for indicting
and trying in the adjoining county at large, persons accused of commit-
ting offences in the county of any city or town corporate except the City of
London (ss. 2, 3, 10), or for transferring for trial at the assizes of the county
at large, indictments found in the county of a city or town (s. 4) (p).

By the Criminal Law Act, 1851 (14 & 15 Vict. c. 55), s. 19 : ' Whenever
any justice or justices of the peace, or coroner, acting for any county of a
city or county of a town corporate within which His Majesty has not been
pleased for five years next before the passing of this Act to direct a com-
mission of Oyer and Terminer and gaol delivery to be executed, and
until His Majesty shall be pleased to direct a commission of Oyer and
Terminer and gaol delivery to be executed within the same, shall com-
mit for safe custody to the gaol or house of correction of such county of a
city or town any person charged with any offence committed within the
limits of such county of a city or town not triable at the court of quarter
sessions of the said county of a city or county of a town, the commitment
shall specify that such person is committed pursuant to this Act, and
the recognisances to appear to prosecute and give evidence taken by
such justice, justices, or coroner shall in all such cases be conditioned
for appearance, prosecution, and giving evidence at the court of Oyer
and Terminer and gaol delivery for the next adjoining county (q) ; and

(m) See Index to Statutory Rules and 'county borough.' The borough of Leicester

Orders (ed. 1907), Supreme Court E, 16. has a separate commiasion of assize, but is

(») Including, besides the common-law not a county in itself. Coventry ceased to

counties, the statutory county of London be a county in 1842 (5 & 6 Vict. c. 110, s. 1).

created in 1889. 51 & 52Vict.c.41,s. 40(2). (p) As to execution of sentence in such

(o) i.e. they have their own sheriffs, and cases see 51 Geo. III. c. 100, s. 1.

for judicial purposes are distinct from the (}) The words omitted were repealed in

counties at large which surround or adjoin 1875. S. L. R. As to costs of prosecution

them. The term ' county of a borough ' is see post, Bk. xii. c. v. ' Costs.'
quite distinct from the administrative term

26 Of Criminal Jurisdiction. [book i.

the justice, justices, or coroner by whom persons charged as aforesaid
may be committed, shall deUver or cause to be delivered to the proper
officer of the court the several examinations, informations, evidence,
recognisances, and inquisitions relative to such persons at the time
and in the manner that would be required in case such persons had
been committed to the gaol of such adjoining county by a justice or
justices, or coroner, having authority so to commit, and the same pro-
ceedings shall and may be had thereupon, at the sessions of Oyer and
Terminer or general gaol delivery for such adjoining county as in the
case of persons charged with offences of the like nature committed within
such county ' (r).

By the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), s. 188 and
sched. 6(s) : ' The next adjoining county (for purposes of criminal trials)
to Berwick-on- Tweed and Newcastle-upon-Tyne is Northumberland ;
to Bristol, Gloucester ; to Chester, Cheshire ; to Exeter, Devon ; and to
Kingston-upon-HuU, Yorkshire.'

Transitory Offences. — Certain offences wholly committed within the
realm, are, for purposes of venue and trial, treated as not being
local but transitory, i.e. the offender may be tried wherever he is found,
apprehended, or in custody. The only offence which is transitory at
common law seems to be larceny (t). Offences committed partly in
one judicial district and partly in another, are triable in either, at common
law or under 7 Geo. IV. c. 64, ss. 12, 13, {ante p. 20). Certain offences are, by
statute, triable wherever the accused is found, or is apprehended, or is in
custody, e.g. bigamy and forgery (m), and post-office offences (v).

Offences on Land outside England. — Apart from statute, existing
English Courts (w) cannot take cognisance of any crime committed on
land outside England, whether by a British subject (x), or an alien.

(r) The venue in the margin of an indict- rations Act, 1835 (5 & 6 Will. IV. c. 76).
ment was 'county of Norfolk, being the (t) 1 Hawk. c. 33, s. 52 ; 1 East, P.O. 771.
next adjoining county to the borough of R. v. Fenley, 20 Cox, 252. Griffith v. Taylor,
Yarmouth ' ; the offence was committed in 2 C. P.D. 194, and post. Vol. ii. p. 1303.
the parish of Gorlestone, in Suffolk. The (u) See the statutes under the titles
whole of that parish is within the juris- relating to the crimes,
diction of the borough of Great Yarmouth, {v) 8 Ed. VII. c. 48, s. 72 (1).
and the prisoner had been committed by (w) The Court of the Constable and
the borough magistrates to the house of Marshal (or Court of Chivalry) had such
correction at Great Yarmouth. It was power, and conducted the trials according
objected that the prisoner could not be to the course of the civil law or by battle,
tried in Norfolk. Pollock, C.B. : ' The It has not been constituted since Lord
words of the statute are, that in such a case Rcay's case, 1631. It has not been for-
as this the prisoner shall be tried " in the mally abolished, but its functions in respect
next adjoining county." Here the next to persons subject to military law are exer-
adjoining county was either Norfolk or cised by courts-martial under the Army
Suffolk. The place in the borough where Act (44 & 45 Vict. u. 58). See Official
the offence was committed has nothing to Manual of Military Law, c. 2. R. v. De-
do with it. This would very likely have pardo, 1 Taunt. 29, 30.
been a good trial in Suffolk, but I think {x) i.e. a person who owes allegiance to
that it is also a good trial in Norfolk.' R. the British Crown by birth in any part
V. Gallant, 1 F. & F. 517. It does not of the British Empire and sembic also by
appear in the report whether Yarmouth naturalisation in the United Kingdom,
was a county of a town, and it is submitted R. v. Manninr, 2 C. & K. 900. Naliural-
that the decision is based on a misreading isation in a British possession appears to
of 14 & 15 Vict. c. 55, s. 19. confer the status of British subject only in

(s) These supersede 14 & 15 Vict. c. 55, that possession. Mere service as a member

s. 24, and sched. C of the Municipal Corpo- of the crew of a British merchant ship does

CHAP. III.] Offences on Land Abroad. 27

Statutory authority has been given for the trial in England of the follow-
ing offences committed outside England: — Treason and misprision of
treason («/) ; murder or manslaughter on land out of the United Kingdom
by a British subject (z); offences against the Dockyards Protection Act,
1772 (12 Geo. III. c. 24, s. 2) ; the Foreign Enlistment Act, 1870 {a) ;
the Explosive Substances Act, 1883 (46 & 47 Vict. c. 3, s. 7); the Official
Secrets Act, 1889 (52 & 53 Vict. c. 52, s. 6), the Commissioners of Oaths
Act, 1889 (52 & 53 Vict. c. 10, s. 9); the Foreign Marriage Act, 1892
(55 & 56 Vict. c. 23, s. 15) ; and bigamy by a British subject outside
England and Ireland (&).

It would seem that no foreigner can be liable to trial or punishment
under British law for any offence committed by him on land outside
the dominions or protectorates of the Crown, even though the act com-
mitted by him takes effect in British territory (c). To these there may
be one exception, in the case of an offence ashore by a foreigner who
is one of the crew of a British merchant ship {d). But this has been
doubted in R. v. Anderson (e).

Homicide. — By 24 & 25 Vict. c. 100, s. 9 : ' Where any murder or
manslaughter shall be committed on land out of the United Kingdom,
whether within the King's dominions or without, and whether the person
killed were a subject of [His] Majesty or not (/), every offence committed
by any subject of [His] Majesty, in respect of any such case, whether
the same shall amount to the offence of murder or of manslaughter,
or of being accessory to murder or manslaughter, may be dealt with,
inquired of, tried, determined, and punished in any county or place
in England or Ireland in which such person shall be apprehended or
be in custody, in the same manner in all respects as if such offence had
been actually committed in that county or place ; provided that nothing
herein contained shall prevent any person from being tried in any place
out of England or Ireland for any murder or manslaughter committed
out of England or Ireland, in the same manner as such person might
have been tried before the passing of this Act '(gr).

not seem to make the seaman a British arose onGeo. IV. c. 31, s. 7, as to whether the

subject. R. V. de Mattos, 7 C. & P. 458, deceased must be a British subject. R. v.

Vaughan, B., and Bosanquet, J. Azzopardi, 2 Mood. 288, where a Maltese

(y) 35 Hen. VIII. c. 2, s. 1. R. v. Lynch killed a Dutchman in Smyrna.
[1903], 1 K.B. 744. (g) Framed from 9 Geo. IV. c. 31, s. 7

(z) 24 & 25 Vict. 0. 100, h. 9, which re- (E), and 10 Geo. IV. c. 34, s. 10 (I). By

enacts 9 Geo. IV. c. 31 s. 7, which replaced 9 Geo. IV. c. 31, s. 7, any person cliarged

57 Geo. III. 0. 53. See R. v. Azzopardi, 2 with any offence specified in the present

Mood. 288 (an indictment of a Maltese enactment might be examined and com-

for murdering a Dutchman in- Smyrna), mitted by any justice of the place where the

and R. v. de Mattos, 7 C. & P. 458 : an indict- person so charged was, and thereupon a

ment of a Spaniard who had been one of the special commission was to be issued for the

crew of a British ship for killing a British trial of such person. By 10 Geo. IV. u. 34,

subject at Zanzibar (57 Geo. III. c. 53). s. 10, where any person was charged in

(a) 33 & 34 Vict. o. 90, ss. 16, 17, -post, p. Ireland with any offence specified in the

292. R. V. Jameson [1896], 2 Q.B. 425. present enactment, he might be examined

(6) 24 & 25 Vict. c. 100, s. 57 (post, and committed by any justice of the place

p. 979). Earl Russell's ease [1901], A.C. 440. where the person so charged was, and there-

(d) 57 & 58 Vict. c. 60, s. 686, -post, p. 43 ; same manner as if his offence had been
2 Steph. Hist. Cr. Law, p. 12. there committed. This was a much better

(e) L. R. 1 C. C. R. 161. provision than that in 9 Geo. IV. c. 31, s. 7,
(/) These words remove a doubt which as it got rid of the necessity for a special

28 Of Criminal Jurisdiction. [book i.

Though 33 Hen. VIII. c. 23 (rep.) was not limited to offences com-
mitted within the King's dominions, yet it was held that it did not apply
to a case where a prisoner of war had taken service on board an English
merchant ship, and whilst in that capacity had killed an Englishman
in a foreign country, on the ground that he could not be deemed a British
subject. The offender, a Spaniard, was taken prisoner at sea, and
whilst abroad, volunteered on board an Indiaman, and received the
usual bounty and part of his pay for about three months, which he
served on board the Indiaman. While the Indiaman was lying in the
Canton river, about a third of a mile in width, within the tideway, at
the distance of about eighty miles from the sea, the prisoner went
ashore with the deceased, an Englishman, and there mortally wounded
the deceased, who was carried on board ship, and died there the next
day.. Upon a case reserved, it was argued that the prisoner was not
liable to be tried here, because he never became subject to the laws of
this country ; that he was not so by birth, and did not become so by
entering on board the Indiaman. No judgment was given, but the
prisoner was discharged (A).

An indictment charged, in substance, that the prisoner, at Lisbon,
in the kingdom of Portugal, in parts beyond the seas without England-,
one H. G., in the peace of God and our lord the King, then and there
being, feloniously did assault, shoot, and murder, against the peace of
,our said lord the King. It was held that the offence was triable in
England, though committed in a foreign country, the prisoner and the
deceased being both British subjects at the time ; and that stating
H. G. to be in the King's peace at the time, sufficiently imported that
he was the King's subject at the time ; and that the statement that
this was against the King's peace, sufficiently imported that the
prisoner was also a subject of this realm at that time(i). In R. «.

commission, and avoided a difficulty which as to which see yost, ' Manslaughter.' This
was very likely to arise under 9 Geo. IV. section was carefully framed in order to
c. 31, H. 7 ; for the special commission issued remove any question as to the killing of a
under that section recited the offence foreigner being within it ; and instead of
charged before the justice, and authorised the words of 9 Geo. IV. c. 31, s. 7, ' where
the trial for that offence, and a fatal any of His Majesty's subjects shall be
variance might well arise on the trial be- charged in England with any murder or
tween the facts proved and the offence manslaughter, or with being accessory
charged before the justice. The present before the fact to any murder,' &c. (which,
section is substantially the same as 10 Geo. from their collocation, might afford an
IV. c. 34, s. 10, but uses the terms of 9 argusient that no murder was within the
Geo. IV. c. 31, s. 8, and under it the party clause unless it were committed by a
charged may be examined before any jus- British subject, and therefore a British
tice of the place where he is, and tried in the subject would not be within it if he were
same place. The words ' dealt with ' apply accessory to a murder by an alien), the
to justices of the peace ; ' inquired of ' to wording of this clause has been adopted so
the grand jury ; ' tried ' to the petit jury ; as to include an accessory to any murder
and ' determined and punished ' to the by whomsoever committed. C. S. G.
Court ; as was held by Parke, B., in R. v. (h) R. v. Depardo, 1 Taunt. 26 ; R. & R.
Ruck, 2 Russ. Cr. &. M. (4th ed.), p. 50, 134. According to the report in R. & R.,
MSS. C. S. G., post, vol. ii. p. 1098. 9 the indictment was for manslaughter. The
Geo. IV. 0. 31,3.7 (E.), and 10 Geo. IV. c. 34, case fell within no statute, as the wound
s. 10 (I), were confined to accessories after was on shore, and the death within the
the fact in manslaughter, but the present Admiralty jurisdiction. See R. v. de Mat-
section is so framed as to include an acces- tos, post, p. 29 ; and R. v. Coombes, post,
8ory before the fact in that offence, p. 33.
wherever there can be such an accessory, (i) R. v. Sawyer, MS. Bayley, J. ; R.

CHAP, in.] Offences on Land Abroad. 29

Helsham (/), it was ruled that an indictment upon 9 Geo. IV. c. 31, s. 7 [h),
must aver, that the prisoner and deceased were subjects of His Majesty,
but that the declarations of the prisoner were evidence to go to the jury-
to prove this fact. The indictment charged the murder to have been
committed ' at Boulogne, in the kingdom of France, to wit, at the parish
of St. Mary-le-bow, in the ward of Cheap,' &c. The grand jury objected
to finding the bill, as it stated the death to have occurred in two different
places. Bayley, J. (having conferred with Bosanquet, J., and the
Recorder), directed the words ' to wit, at the parish of St. Mary-le-bow,
in the ward of Cheap,' &c., to be struck out. His lordship also said,
that it was deemed by the Court to be necessary to have inserted in the
bill an allegation that the prisoner and the deceased were subjects of
His Majesty; and the bill was so amended accordingly. Upon the
trial it appeared that the deceased was killed in a duel at Boulogne, and
that he was an Englishman, born at Islington ; and the prisoner had
said he was an Irishman, and had come from Kilkenny. It was objected
that, under 9 Geo. IV. c. 31, s. 7, it was necessary to prove that the parties
were natural-born subjects of His Majesty; the present Act differed
from 33 Hen. VIII. c. 23, the words of which were' any person or persons,'
and that since it never could have been intended that this Act should
apply to foreigners domiciled in England, or naturalised either by Act
of Parliament (I), or by service to the state, it was necessary to prove,
by some one acquainted with the fact, where the prisoner was born,
which was a fact the prisoner could not know of his own knowledge.
But it was held, that the declaration of the prisoner, unexplained, was,
as against himself, evidence to go to the jury ; and the case was left
to the jury to say, whether they were satisfied by the evidence that the
prisoner was a British horn subject ; for that they must be quite satisfied
that such was the fact before they could pronounce him guilty. But it is
questionable whether this ruling could now be accepted, and probably
that R. V. Sawyer (supra) would be followed (m).

Where an indictment for manslaughter stated that the prisoner
being a subject of His Majesty, on land out of the United Kingdom,
to wit, at Zanzibar, did make an assault on J. K., and did give him
divers mortal wounds, &c., of which he died, at Zanzibar aforesaid,
and it appeared that the prisoner, a Spaniard, while in England, entered
into articles to serve in a ship bound on a voyage to the Indian seas,
and elsewhere, and back to the United Kingdom. On the ship's arrival
at Zanzibar, then under the dominion of the Sultan of Muscat, the captain
left the vessel, and set up in trade there, and engaged the prisoner to

& R. 294 ; and 2 C. & K. 101. In the latter rights, powers, and privileges, and becomes

report there is » very full account given subject to all obligations, to which a

of the previous cases. Another objection, natural-bom British subject is entitled or

that the indictment ought to have con- subject. But he does not necessarily cease

eluded contra formam statuti, was also to be a citizen of his original state. 8.ee

overruled. Report of Committee on NaturaUsation

(?) 4 C. & P. 394, Bayley and Bosanquet, (Pari. Pap. 1901, c. 723).
JJ., and Knowlys, R. (to) See R. v. Audley [1907], 1 K.B. 383 ;

(k) See note {g), ante, p. 27. bigamy by a British subject abroad. R. v.

(I) Uiider the Naturalisation Act, 1870 Jameson [1896], 2 Q.B. 425 : offences in

(33 & 34 Vict. c. 14), an alien naturalised South Africa against the Foreign EnUst-

in the United Kingdom is entitled to all ment Act, 1870.

Of Criminal Jurisdiction.

[BOOK I.

go on shore and act as his interpreter. The new captain seems to have
assented, but the crew did not. The ship went one or two short voyages
without the prisoner, and having returned to anchor in a roadstead, a
few hundred yards from Zanzibar, and the crew being allowed to go on
shore, some dispute arose between the prisoner and the deceased, who
was one of the crew, which led to the blows, of which the deceased after-
wards died on board the ship. It was ruled that there was no evidence
of the prisoner being a British subject or under British protection. To
claim his allegiance, it must at least be shewn, that he was under British
protection. And although he was on board a British ship for a time,
yet it seemed as if the articles were abandoned, and he was living on
shore, and had been so for months. And, secondly, that the offence
was alleged to have been committed on land out of the United Kingdom,
but though the blows were given on land, the death took place on board
ship, and there was no clause in 9 Geo. IV. c. 31, providing for such
a case {n).

In R. V. Bernard (o), the prisoner was charged as accessory before the
fact in England to a murder committed in France ; and many points were
taken at the close of the case, and reserved (p), but as the accused was

of acts done by the prisoner on land out
of the United Kingdom, and without the
Queen's dominions, or of any act done by
any other person in pursuance of any
authority from him on land out of the
United Kingdom and without the Queen's
dominions, was receivable in evidence on
this trial. 6. That the principal offence of
murder charged in the first three counts
was not alleged to have been committed by
any of Her Majesty's subjects. 7. That
by the special commission the Court had
only jurisdiction to try the prisoner as
accessory before the fact, and had no juris-
diction to try the prisoner as principal.
8. That the prisoner, being an alien, could
not be tried as principal for a murder
alleged in the fourth and fifth counts to
have been committed at Paris. As to the
first objection, it is clear that a foreigner
resident in England is a subject of the
Queen ; all the authorities prove that rule
in general, and 1 Hale, 542, and Courteen's
case, Hob. 270, are express that a statute
naming the subjects of the Queen includes
aliens in England ; and besides, 32 Hen.
VIII. c. 16, s. 9, enacts that every alien
who shall hereafter come into this realm or
the dominions of the King, shall be bound
by all the laws and statutes of this realm.
As to the second, third, fourth, and sixth
objections, see 24 & 25 Viet. c. 100, s. 9,
ante, p. 27 ; and post, p. 835 et seq.,
relating to conspiracies to murder. As
to the fifth objection, every case that
has been tried where the death was on laud
abroad is an answer ; for such evidence
was admitted in all, and necessarily so ; for
how can a man be tried for any offence
abroad unless the acts relating to it done
abroach are admissible in evidence ? As to

(») R. V. de Mattos, 7 C. & P. 458,
Vaughan and Bosanquet, JJ. RoUe, S.G.,
doubted whether the limitation put upon
9 Geo. IV. c. 31, s. 7, in R. v. Helsham
(supra) was correct, and the Court seems to
iiave thought that that construction was
too narrow. Vaughan, J., in charging the
grand jury, said, ' there are other ways
which may constitute a man a British
subject ; as, for instance, he may owe
allegiance for protection.' The case was
decided on the ground that the prisoner
was not a British subject in any sense of
those words. C. S. G.

(o) 8 St. Tr. (N. S.) 887 ; 1 F. & P. 240.
The first count alleged that Orsini, Gomez,
and Rudio at Paris murdered N. Batty ;
and that the prisoner incited, &c., them to
commit the murder ; the second count was
similar, but described the deceased as un-
known. The third count was framed in
the old form before 14 & 15 Vict. c. 100, by
Mr. Greaves ; because he thought it might
be contended that 14 & 15 Vict. o. 100, s. 4,
did not extend to indictments against
accessories ; and it alleged an assault, &c.,
by the principals, and charged the prisoner
with inciting, &c. The fourth count
charged the prisoner, being a subject of the
Queen, with murdering Batty at Paris.
The fifth was Uke the fourth, but described
the deceased as unknown. C. S. 6.

(p) The points were : 1. That the
prisoner was not one of Her Majesty's sub-
jects within 9 Geo. IV. c. 31, a. 7. 2. The
prisoner was not an accessory before the
fact to any murder within that section.

3. There was no proof of any murder having
been committed within that section.

4. That the murder was committed by
aliens on aliens in France. 5. No evidence

CHAP. III.] Admiralty Jurisdiction. 31

acquitted, were never argued, and most of the points taken are covered
by 24 & 25 Vict. c. 100, sect. 9 (ante p. 27), and the accessories and
abettors clauses of the Acts of 1861.

Offences by Officials out of Great Britain.— By an Act of 1698
(11 Will. III. c. 12) (q), oppressions, crimes, and offences committed by
governors, lieutenant-governors, or commanders-in-chief of plantations
or colonies within the King's dominions beyond the seas are triable
in England in the High Court (K.B.D.) The Act is expressed to
be against oppression of the King's subjects within their respec-
tive governments, and other crimes and offences, ' contrary to the
laws of this realm, or in force within their respective governments or
commands.' By the Criminal Jurisdiction Act, 1802 (42 Geo. III. c. 85),
crimes, misdemeanors, or offences committed out of Great Britain by
a person in the service of the King, civil or military, or in any public
station, office, or capacity, may be prosecuted in the High Court (K.B.D.)
in England, either upon an information exhibited by the Attorney-General,
or upon indictment found, and are triable in the counties of London or
Middlesex (r). This Act has been held not to apply to felonies (s), but
it has been applied to offences by British officials in foreign countries (t).
There is also imperial legislation as to the trial in England of certain
offences committed in India (u). The provisions of the Indictable
Offences Act, 1848 (11 & 12 Vict. c. 42), as to holding a preliminary
inquiry as to offences committed on land beyond the seas for
which an indictment may legally be preferred in England or Wales, apply
to proceedings under the above Acts, and the High Court is a Court of
Oyer and Terminer for trying such offences (v).

Offences in the Jurisdiction of the Admiralty of England. — The
criminal jurisdiction of the Admiralty of England attaches :

1. In the case of piracy jure gentium to all vessels and persons of

whatever nationality : and

2. To all British ships, public or private, on the high seas, outside the

territorial waters of any state : and

3. To all vessels, British or foreign, within British territorial waters (w),

including all ports, havens, and rivers, below bridges, where
great ships go. To some extent -the jurisdiction is concurrent
with that of the common law courts in the case of waters which
are within the body of a county : and

the seventh objection, 11 & 12 Vict. c. 46, 466.

s. 1 (now 24 & 25 Vict. c. 94, s. 1), making (a) 10 Geo. III. o. 47 s. 4 ; 13 Geo. III.

every accessory before the fact triable, &c., c. 63, s. 39 ; 21 Geo. III. c. 70, s. 7 ; 33

as a principal, is an answer. As to the Geo. III. c. 52, s. 67. These enactments and

eighth objection, see the remarks on 24 & 25 others are collected and epitomised in Ilbert,

Vict. c. 94, s. 1, post, p. 130. C. S. G. Govt, of India (2nd ed.), 255-259.

(q) 11 & 12 Wm. Ill c. 12, in Ruffhead's (v) R. v. Eyre, L. R. 3 Q.B. 487.

edition. (w) See 41 & 42 Vict. c. 73, post, p. 41.

(r) 42 Geo. III. c. 85, s. 1 ; 51 & 52 Vict. In R. v. Cunningham, Bell, 72, an American

0. 41, s. 89. who on an American ship in the Bristol

(«) R. V. Shawe, 5 M. & Sel. 403. For Channel wounded one of the crew was held

other prosecutions under this Act see R. v. to be triable in the county of Glamorgan.

Jones, 8 East, 31. R. v. Picton, 30 St. Tr. In this case the part of the sea where the

225 (relating to the application of Spanish ship lay was held to be within the body of

procedure in Trinidad). the realm.

{t) R. V. Turner [1889], 24 L. J. (newsp.)

32 Of Criminal Jurisdiction. [book i.

4. To all British public vessels in foreign territorial waters. The

jurisdiction is probably exclusive of the jurisdiction of the state
to which the waters belong (a;) : and

5. To all British vessels, public or private, within foreign territorial

waters. This jurisdiction is concurrent with, or perhaps sub-
ordinate to, the jurisdiction of the state to which the waters
belong.
The Admiralty of England (y) has always had criminal jurisdiction
in respect of piracy jure gentium, committed by persons or ships of any
or no nationaHty(2),and of ofEences committed on British ships («), whether
public vessels or merchant ships on the high seas. Conflicts as to juris-
diction arose between the common Courts and the Admiralty as to matters
arising in waters within the body of the realm, which led to statutes of
1389 (13 Eich. II. c. 3), and 1391 (15 Eich. II. c. 3). Under the earHer of
these Acts the admiral is prohibited from meddhng ' of anything done
within the realm, but only of a thing done upon the sea.' The later Act,
after providing that ' all manner of contracts, pleas and quarrels, and all
other things rising within the bodies of counties as well by land as by
water and wreck of the sea, shall be tried, determined, discussed and
remedied by the laws of the land, and not before nor by the admiral nor
his lieutenant in any wise,' proceeds : ' Nevertheless, if the death of a man
and if a mayhem done in great ships being and hovering in the main stream
of great rivers, only beneath the bridges (6) of the same rivers nigh unto
the sea and in none other places of the same rivers the admiral shall have
cognisance ; and also to arrest ships in the great flotes for the great
voyages of the King and of the realm — saving always to the King all
manner of forfeitures and profits thereof coming : and he shall have the
jurisdiction upon the said flotes during the said voyages only.' . . .

(x) But see Forbes v. Cochrane, 2 B. & Description of the River Thames (Long-

C. 467, Best, J. and Report of Fugitive man, 1752), it is said that the Lord Mayor

Slave Commission (Pari. Pap. 1876, vol. 28). of London used to summon a jury four

(y) As to the origin and history of the times a year ' to make inquisition after all

Admiralty jurisdiction see Selden Soc. offences committed on the Thames and

Publications, vol. 6, Introduction ; 2 Medway up the river as far as Staines

Stubbs, Const. Hist. 289 ; and the opinions Bridge, and down the river as far as the

of the judges in E,. v. Keyn [1876], 2 Ex. D. points of it next the sea,' and that ' the

63. jurisdiction of the City of London in

(z) R. V. Keyn, 2 Ex. D. 63, 168, Cock- the river of Thames from Staines Bridge

bum, C.J. westward unto the points of the river next

(a) In R. V. Keyn, 2 Ex. D. 63, the to the sea eastward, appeareth to belong

majority of the Court held that the Admiral to the City.' All this appears to be taken

had no jurisdiction to try offences by from old charters. In 1347 it appears that

foreigners on foreign ships even within persons setting kiddels ultra Genland

British waters. See 41 & 42 Vict. u. 78, (Yantlett) versus mare were fined (pp. 94,

post, p. 41. 95, 96). In later times Yendall or Yenlet

(6) There are various readings in the seems from old charters to be the limit (p.

Norman-French texts of this statute. In 139). It is clear that ' bridges,' and not

the Statutes of the Realm, printed from ' points ' or ' ports,' is the true reading. In

the Tower Roll, the words are, ' per aval les Moore, K.B. 892, Dodderidge J., in speak-

pountz.' In Rot. Pari. No. 30 the word is ing of the statute, uses the words ' subtus

pontz : see 7 C. & P. 665n. Old printed le pont,' and in Leigh v. Burley, Owen, 122,

copies have pointz or poyntz (4 Co. Inst. the judge said: 'The translator mistook

137). Pulton's Calendar, 1612, Pulton's "bridges" for "points," i.e. the land's

Statutes, 1661, and some old abridgements end.'
have 'ports (Gary's Abr. 1739). In A

CHAP. III.] Admiralty Jurisdiction. 33

The jurisdiction thus preserved is (as to English rivers) concurrent with,
and not exclusive of, the jurisdiction of the common-law Courts (o) : and
extends to offences committed on a British ship in foreign or colonial
ports or waters (d). It is immaterial whether the ship is moving about the
foreign waters (e), or at anchor therein (/) or moored to the land {g), so
long as she is afloat and below bridges, at a part where the tide ebbs
and flows and great ships go. All such waters are, for purposes of indict-
ment and Admiralty jurisdiction, treated as part of the ' high seas,' an
expression which, ' when used with reference to the jurisdiction of the
Court of Admiralty, includes all oceans, seas, bays, channels, rivers,
creeks and waters below low-water mark, and where great ships can
go, with the exception only of such parts of such oceans, &c., as are
within the body of some county ' Qi).

In R. V. Coombes {i), a sailor on board a boat which had run aground
100 yards from the shore was shot by a smuggler and died on the sea.
The whole offence was held to have been committed within the Admiralty
jurisdiction. The decision is supported on the ground that in the case
of murder the intention is presumed to follow the act, and so the shot
which took effect on the high seas must be presumed to be accompanied
thither by the intention with which it was fired, and both these together
operate {j) ; or that the blow strack by the bullet was an act done in the
jurisdiction where it hit the sailor {h). According to the decision, the
crime must, for the purpose of determining the venue, be held to have
been committed on an English ship where the death occurred, a doctrine
founded on a convenient fiction (i). R. v. Coombes was in the United
States applied so as to exclude the jurisdiction of the United States
Courts in the case of a death caused on a foreign vessel, in foreign
territorial waters, caused by a shot from a United States vessel in these
waters (m).

In R. V. Jemot (w) larceny from a British ship in a natural harbour
in Cuba was held to be within the Admiralty jurisdiction.

In R. V. Allen (o) the indictment was for steahng three chests of tea
out of the ' Aurora,' of London, on the high seas, and it was proved that
the larceny was committed while the vessel lay off Whampoa, in a river,
twenty or thirty miles from the sea. There was no evidence as to the

(d) The ' Mecca ' [1895], P. 95, 107, Lind- (I) lb. 119, Amphlett, J.A.

ley, L.J. (to) U. S., Davis, 2 Sumner, 482 ; dis-

(e) R. V. Anderson, L. R. 1 C. C. R. 161. cussed by Cockburn, O.J., in R. v. Keyn at
(/) R. V. Allen, 1 Mood. 494. 232.

(g) R. V. Carr, 10 Q.B. 76. («) Old Bailey, Feb. 28, 1812, MS.

(h) The ' Mecca ' [1895], P. 95, 107, Lind- Archb. Cr. PI. (23rd ed.) 540, where the

ley, L.J., citing the above cases, and 4 Co. offence is said consequently to be piracy.

Inst 134: Com. Dig. Admiralty (1), (7), (14). In the Times of Feb. 29, 1812, the offence is

(i) 1 Leach, 388. In Badisohe Anilin spoken of as larceny, and this description
und Soda Fabrik v. Basle Chemical Works is accepted in R. v. Carr, 10 Q.B D. 76, 83,
[1898], A.C. 200, 204, Halsbury, L.C., Coleridge, C.J. The trial was at an Ad-
said, with reference to this case ; ' I think miralty Session at the Old Bailey,
one may say there is a confusion of thought (o) [1837] 7 C. & P. 664. In the report
between the technical rules of criminal in 1 Mood. 494, the judges are said to have
venue and the question who is the person affirmed the conviction, ' the place being
doing the act.' where great ships go." The trial was at

(j) R V Keyn, 2 Ex. D. 63, 103, Den- the Central Criminal Court under 4 & 5 Will,

man, J. IV. c. 36, s. 22, post, p. 38.

VOL. I.

34 Of Criminal Jurisdiction. [book i.

tide flowing, or otherwise, at the place where the vessel lay, but it was
held that the fact that the tea was stolen on board the vessel, which
had crossed the ocean, afforded sufficient evidence that the larceny was
committed on the high seas.

In E. V. Anderson {f) an American citizen, engaged as a sailor on a
British ship, was held to have been lawfully indicted and convicted of the
manslaughter of another American citizen on that ship while she was
sailing up the river Garonne, in France, on her way to Bordeaux. At the
time when the offence was committed the ship was ninety miles up the
river.

In E.. V. Carr [q) a prisoner was held to have been lawfully indicted
and convicted of larceny on a British ship which at the time of the com-
mitting of the offence lay moored to a quay in the port of Eotterdam in
Holland, at a point on the river Maas seventeen or eighteen miles above
the open sea, but below the bridges.

In E. V. Lesley (r), the defendant, who was master of an English ship,
entered into a contract with the Chilian Government to carry from
Valparaiso to Liverpool five persons who had been ordered by that
Government to be banished. These persons were brought by force on board
the ship, guarded by soldiers of that State, and conveyed by the defendant
under the contract, and against their will, to Liverpool. At the time he
received these persons on board, the ship was lying in the territorial
waters of Chili . The defendant was indicted, tried and convicted at Liver-
pool for false imprisonment and assault. On a case reserved, it was held
that so far as it related to what was done in Chilian waters the conviction
could not be sustained. Brie, C.J., said : ' We assume that in Chili the
act of the Government towards its subjects was lawful ; and, although an
English ship, in some respects, carries with it the laws of her country
in the territorial waters of a foreign State, yet, in other respects, she
is subject to the laws of that State, as to acts done to the subjects thereof.
We assume that the Government could justify all that it did within its
own territory, and we think that it follows that the defendant can justify
all that he did there as agent for the Government, and under its authority.'
But the conviction was sustained for that which was done out of the
Chilian territory (s). As to this, Erie, C.J., said : ' It is clear that an
English ship on the high seas out of any foreign territory, is subject to the
laws of England ; and persons, whether foreign or English, on board
such ship, are so much amenable to English law as they would be on
English soil ' {t). After referring to 18 & 19 Vict. c. 91, s. 21 [u), he
continued : ' Such being the law, if the act of the prisoner amounted
to a false imprisonment he was liable to be convicted. Now, as the
contract of the prisoner was to receive the five persons on board the

(f) L. R. 1 C. C. R. 161. plaintiff's vessel in Portuguese waters on

(2) R. V. Carr, 10 Q.B.D. 76. In this case behalf of and by authority of the Queen of

the words ' below the bridges ' in the Act Portugal.

15 Rich. 11. c. 3, were construed as applying (t) He referred to R. v. Sattler, 27 L. J.

to foreign as well as British rivers. M. 0. 48, and Ortolan, Divlomatie de la

(r) 29 L. J. M. 0. 97. Mer, Bk. ii. 0. 13.

(«) He then referred to Dobree v. Napier, (u) Superseded by 57 & 58 Vict. 0. 60, s.

2 Bing. (N. C.) 781, a case in which the 687, post, p. 43.
defendant was held justified in seizing the

CHAP. III.] Admiralty Jurisdiction. 35

ship and to take them, without their consent, over the sea to England,
although he was justified in first receiving them in Chili, yet that justi-
fication ceased when he passed the line of Chilian jurisdiction, and after
that it was a wrong which was intentionally planned and executed in
pursuance of the contract, amounting in law to false imprisonment.
It may be that transportation to England is lawful by the law of Chili,
and that a Chihan ship might so lawfully transport Chilian subjects ;
but for an English ship the laws of Chili, out of that State, are powerless,
and the lawfulness of the acts must be tried by English law.'

High and Low Water-mark. — Upon the open seashore the common
law and the admiral have alternate jurisdiction between high and low
water-mark {i.e. the admiral has jurisdiction supra aquam as long as
the sea flows, and the common-law Courts jurisdiction over the land so
long as the sea does not cover it (v). It is sometimes difiicult to fix the
line of demarcation between the county and the high sea in harbours, or
below the bridges in great rivers. The question is often more a matter
of fact than of law, and determinable by local evidence ; but some general
rules upon the point are collected in East's Pleas of the Crown, where it is
said that ' in general it is said that such parts of the rivers, arms, or
creeks, are deemed to be within the bodies of counties where persons can
see from one side to the other (w). Lord Hale, in his treatise De jure maris,
says that the arm or branch of the sea which lies within the fauces terrce,
where a man may reasonably discern between shore and shore, is, or at
least may be, within the body of a county. Hawkins, however, con-
siders the line more accurately confined, by other authorities, to such
parts of the sea where a man, standing on the one side of the land, may
see what is done on the other ; and the reason assigned by Lord Coke in
the Admiralty case (x) in support of the county coroner's jurisdiction,
where a man is killed in such places, because that the county may well know
it, seems rather to support the more limited construction. But at least,
where there is any doubt, the jurisdiction of the common law ought to
be preferred ' (y).

Bays. — Where a murder was committed in Eoundstone Bay, and
it appeared that the place in question was within the county of Galway,
and that the headlands bounding the bay were so situated that a man
could see from the one to the other, and that the place in question would
fall within a straight Hne drawn from the one headland to the other, and
that in that part of the bay there were fifteen fathoms water, and that
a ship of 120 tons could sail there ; but there was no evidence of it having
been frequented by shipping, or of any Admiralty process having ever
been executed within it ; it was held by the judges in Ireland that the
murderer was rightly tried under an Admiralty commission (2).

Roadsteads. — -Upon an indictment for maliciously wounding in

{v) 3 Co. Inst. 113. 2 Hale, 17. See 2 county, the admiral hath jurisdiction, or

Hawk. c. 9, s. 14, as to the jurisdiction of else not.' Leigh v. Burley, Owen, 122,

a county or borough coroner in offences on Coke, and Foster J. ; Cf. Moore (K.B.), 892.

the seashore. Anon., 1 Lew. 242. See (cc) 13 Co. Rep. 52.

•Jervis on Coroners (6th ed.), 103. 5 Co. (y) 2 East, P. C. 803, 804.

Rep. 107. (z) R. V. Mannion, 2 Cox, 158.

[w) ' If the sea there be not of any

D 2

36 Of Criminal Jurisdiction. [book i.

the county of Glamorgan, it appeared that the prisoners were Americans,
and they and the person wounded were part of the crew of an American
ship, which sailed from the docks of Cardifi to an anchorage in Penarth
Koads, and that the offence was committed shortly before she arrived
at that anchorage, when the ship was three-quarters of a mile from land,
in a place never left dry by the tide ; but was within a quarter of a mile
of land which is left dry by the tide. The shore of the county of Glamorgan
extends many miles up and down the Bristol Channel from the place
where the offence was committed. The spot in question was in the
Bristol Channel, between the Glamorganshire and Somersetshire coasts,
and was about ten miles from the opposite coast of Somersetshire. Two
islands, called the Flat and Steep Hohnes, are outside the anchorage-
ground, and farther from the shore than it is, but not lower down the
Channel, being abreast of the anchorage-ground. When the offence
was committed the ship was inside, and about two miles from the Flat
Holmes, and four or five miles from the Steep Holmes, and was within the
Lavernock Point in Penarth Eoads, but outside Penarth Head. Penarth
Head and Lavernock Point form a bay. At Penarth Head persons can
see from one to the other, and could see what a vessel was doing from
one to the other, but could not see the people from one to the other. From
where the ship was persons could see people at Lavernock, and see what
they were doing if they took particular notice of them, and they could
see the coast of Somersetshire on a clear day. The mouth of the Severn
is at King's Eoad, higher up the Channel. The Holmes are part of the
parish of St. Mary's, Cardiff. By an order of the Treasury, the port of
Cardiff had been fixed so as to include the spot in question. It was
objected that the prisoners could not be tried in the county of Glamorgan,
as there was no proof that the offence was committed in that county ;
but it was held that the offence was committed in that county. Cockburn,
C.J. : ' The question is, whether the part of the sea on which the vessel
was at the time when the offence was committed forms part of the body
of the county of Glamorgan ; and we are of opinion that it does. The sea
in question is part of the Bristol Channel, both shores of which form part
of England and Wales, of the county of Somerset on one side, and the
county of Glamorgan on the other. We are of opinion that, looking at
the local situation of this sea, it must be taken to belong to the counties
respectively by the shores of which it is bounded; and the fact of
the Holmes, between which and the shore of the county of Glamorgan the
place in question is situated, having always been treated as part of the
parish of Cardiff, and as part of the county of Glamorgan, is a strong
illustration of the principle on which we proceed, namely, that the whole
of this inland sea between the counties of Somerset and Glamorgan is to
be considered as within the counties, by the shores of which its several
parts are respectively bounded. We are, therefore, of opinion that the
place in question is within the body of the county of Glamorgan' {a).

Prior to the passing of the statutes now to be mentioned, wherever
a murder or other felony against the law of nature or nations was com-
mitted in England or on the narrow seas (6), it was triable by jury in the

(a) R. V. Cunningham, Bell, 72. (6) See post, p. 38.

ciHAP. III.] Admiralty Jurisdiction. 37

Court of King's Bench and Courts of Oyer and Terminer and gaol delivery.
But wherever a murder or such other felony was committed on the high
seas, it could not be tried by a jury (because a jury by the common law
could only take cognisance of felonies committed within the local jurisdic-
tion from which they were summoned), but such matters and other
felonies were always triable by the Court of Admiralty, which proceeded
according to the course of the civil law (c). To this proceeding there
was the vital objection that it did not try by a jury (d), and either the
accused must plainly confess his offence, or there must be two witnesses
who saw the offence committed ; and this led to the passing of the Offences
at Sea Act, 1536 (28 Hen. VIII. c. 15). The preamble of that Act (e)
recites that ' traitors, pirates, thieves, robbers, murderers, and con-
federators upon the sea many times escape unpunished because the trial
of their offences hath heretofore been ordered, judged, and determined
before the admiral or his lieutenant or commissary, after the course of
the civil laws the nature whereof is that before any judgment of death can
be given against the offenders, either they must plainly confess their
offences (which they will never do without torture or pains), or else their
offences be so plainly and directly proved by witness indifferent, such as
saw their offence committed, which cannot be gotten but at chance at
few times.' . . . Sect. 1 enacts ' that all treasons, felonies, robberies,
murders, and confederacies, committed in or upon the sea (/), or in any
other haven, river, creek, or place, where the admiral or admirals have,
or pretend to have, power, authority, or jurisdiction, shall be inquired,
tried, heard, determined, and judged, in such shires and places in the
realm as shall be limited by the King's commission, or commissions to
be directed for the same, or like form and conditions as if any such offence
or offences had been done in or upon the land ' (g).

The Act did not create or alter any offence, but left the offences as
they were before it passed, and all the offences mentioned in it were,
before its passing, triable in the Court of Admiralty, and were by the Act
made triable by a jury (h).

By the Offences at Sea Act, 1799 (39 Geo. III. c. 37), s. 1, ' all and
every offence and offences, which, after the passing of this Act (May 10,
1799), shall be committed upon the high seas out of the body of any
county of this realm, shall be, and they are hereby declared to be offences
of the same nature respectively, and to be subject to the same punish-
ments respectively, as if they had been committed upon the shore, and

(d) Commissions of oyer and terminer One of the mischiefs recited in the first see-
to try piracy, &c., seem to have been issued tion, is, that the witnesses being commonly
to common-law Courts until 1361. The mariners and shipmen, depart without long
practice then dropped until 1536. See 6 tarrying or protraction of time. The sta-
Selden Society Publications, pp. xlv., Ixxx. tute is almost in the same terms as 27 Hen.

and robbers of the sea.' See 3 Co. Inst. except that it adds ' treasons ' to the

112, and post, p. 257. offences. See R. v. Snape, 2 East, P. 0.

(/) In Leigh v. Burley, Owen, 122, 807. B. v. Bayley, E. & R. 1. R. v.

Coke and Foster, J., explain this as meaning Amarro, R. & R. 286.

the high seas. (^) See 3 Co. Inst. 112. R. u. Keyn, 2

(gr) S. 2 introduces the words ' man- Ex. 63, 169, Cockburn, C.J. R. v. Depardo,

slaughters,' and uses the words ' havens,' 1 Taunt. 26, 36, Sir J. Mansfield.
&c., without the qualification in the first

38 Of Criminal Jurisdiction. [Book i.

shall be inquired of, heard, tried, and determined and adjudged in the
same manner as treasons, felonies, murders, and confederacies are directed
to be by the Offences at Sea Act, 1536 ' (t). By the Criminal Law Act,
1827 (7 & 8 Geo. IV. c. 28, s. 12), ' All offences prosecuted in the High
Court of Admiralty of England shall upon every first and subsequent
conviction be subject to the same punishments, whether of death or
otherwise, as if such offences had been committed upon the land.' {j) By
the Central Criminal Court Act, 1834 (4 & 5 Will. IV. c. 36), s. 22, ' the
justices and judges named in the commission constitute the Court, or
any two or more of them have power to inquire, hear, and determine any
offence or offences committed or alleged to have been committed on the
high seas and other places within the jurisdiction of the Admiralty of
England, and to deliver the gaol of Newgate (or other appointed prison
of the Court (/) ), of any person committed thereto, or detained therein,
for any offence or offences committed or alleged to have been done and
committed upon the high seas, aforesaid, within the jurisdiction of the
Admiralfy of England : and all indictments found, and trials and other
proceedings had and taken before the said justices and judges of
oyer and terminer and gaol delivery shall be valid and effectual to all
intents and purposes whatsoever ' (k).

Before the passing of the nineteenth-century Acts, presently to be stated
controversies arose in cases in which the Admiralty and the common-
law Courts had or claimed concurrent jurisdiction on the narrow seas if).
In E. V. Bruce (m), a trial at the Admiralty session at the Old Bailey for
murder committed in a part of Milford Haven, where it was about three
miles across, about seven or eight miles from the mouth of the river, or
open sea, and about sixteen miles below any bridges over the river, the
question was raised whether the place where the murder was committed
was within the limits to which the commission granted under the Offences
at Sea Act, 1536 (w), by law extended. The judges were unanimously
of opinion that the trial was properly had, and that there was no objection
to the conviction on the ground of want of jurisdiction in respect of the
place under the commission of the Court of trial. During the discussion
of the point the construction of Hale (o) was much preferred to that of
Coke {f) ; and most, if not all, of the judges, seemed to have thought that
the common law has concurrent jurisdiction with the Admiralty in all
havens, creeks, and rivers in this realm, and that the Act of 1536 applied
to all great waters frequented by ships ; that in such waters the admiral,

(i) It 13 not quite clear whether this Act of 1536 had no jurisdiction, and in the

applies to offences created by subsequent former event the offender could not be

statutes. indicted before a common-law Court, even

(;■) See Central Criminal Court Prisons when the offence was theft and the goods

Act, 1881 (44 & 45 Vict. c. 64). were carried ashore. 2 East, P. C. 805.

(k) This enactment made it unnecessary 3 Co. Inst. 149. R. v. Prowes, 1 Mood,

to hold the Admiralty Sessions which had 349. E. v. Madge, 9 C. & P. 29. It would

theretofore been held at the Old Bailey. seem that the statutes above set out overrule

(I) Ante, p. 35. Before the passing of these decisions,
the Act of 1799 and s. 115 of the Larceny (m) [1812] 2 Leach, 1093.

Act, 1861, it was important to ascertain (n) Post, p. 39.

whether the fact was done on the sea or (o) 2 Hale, 16, 17.

within the body of a county, because in the (p) 3 Co. Inst. 119. 4 Co. Inst. 134.

latter event commissioners under the Act

CHAP, iii.i Admiralty Jurisdiction. 39

in the time of Henry VIII., claimed jurisdiction ; that by havens, &c.,
havens in England were meant to be included, though they are all within
the body of some county ; and that the mischief from the witnesses
being sea-faring men was likely to apply to all places frequented by
ships (q).

An accessory before the fact to a felony committed on the high seas
within the jurisdiction of the Admiralty, may be indicted and tried at
the Central Criminal Court, under 4 & 5 Will. IV. c. 36, s. 22 {ante, p. 38),
although the principal had not been ' committed to, or detained in,'
Newgate (r).

The Admiralty Offences Act, 1844 (7 & 8 Vict, c. 2), after reciting the
Act of 1536 {ante, p. 37), and that it is expedient that provision be
made for the trial of persons charged with offences committed within the
jurisdiction of the Admiralty, enacts (sect. 1) ' that His Majesty's justices
of assize or others His Majesty's commissioners by whom any Court
shall be holden under any of His Majesty's commissions of oyer and
terminer or general gaol delivery shall have severally and jointly all the
powers which by any Act are given to the commissioners named in any
commission of oyer and terminer for the trying of offences committed
within the jurisdiction of the Admiralty of England, and that it shall be
lawful for the first-mentioned justices and commissioners, or any one or
more of them, to inquire of, hear, and determine all offences alleged to
have been committed on the high seas and other places within the jurisdic-
tion of the Admiralty of England, and to deliver the gaol in every county
and franchise within the limits of their several commissions of any person
committed to or imprisoned therein for any offence alleged to have been
committed upon the high seas and other places within the jurisdiction
of the Admiralty of England ; and all indictments found, and trials and
other proceedings had, by and before the said justices and commissioners
shall be valid ' (s). This Act gives to Courts of Oyer and Terminer, &c.,
the same jurisdiction as was possessed by commissioners binder the Act
of 1536 and by the Court of Admiralty before that Act. It does not
affect the jurisdiction of the Central Criminal Court or of special com-
missions under the Act of 1536 (<).

By sect. 2, ' in all indictments preferred before the said justices and
commissioners under this Act the venue laid in the margin shall be the
same as if the offence had been committed in the county where the trial
is had ; and all material facts which in other indictments would be
averred to have taken place in the county where the trial is had shall in
indictments prepared (m) and tried under this Act be averred to have
taken place " on the high seas "'(«). An indictment under this Act for

(q) MS., Bayley, J. within the juriadiotion of the Admiralty
(r) E. V. Wallace, 2 Mood. 200 ; C. & under 7 Geo. IV. c. 38, but so much of that
M. 200. For Newgate read now ' the prison Act as related to the examination and
of the Court.' Newgate prison has been commitment of such persons was repealed
demolished. by 11 & 12 Vict. o. 42, s. 34 (E), and 12 & 13
(s) The residue, which related to costs, Vict. c. 69, s. 31 (I) and the examination
was repealed in 1882 (45 & 46 Vict. i;. 55). and commitment of such persons are now
(t) S. 4. regulated by 11 & 12 Vict. c. 42 (E), and
(u) Qiicere, ' preferred.' 14 & 15 Vict. c. 93 (I). It seems, there-
in) S. 3 provides for the commitment fore, that 7 & 8 Vict. o. 2, s. 3 is virtually
of persons charged with offences committed repealed.

40 Of Criminal Jurisdiction. [book i.

larceny ' on the high seas ' was held sufficient, without adding ' within
the jurisdiction of the Admiralty ' (w). The provisions as to alleging
that the offence was committed on the high seas seems to be direc-
tory (a;).

Each of the Criminal Law Consolidation Acts of 1861, 24 & 25 Vict,
c. 96, s. 115 ; c. 97, s. 72 ; c. 98, s. 50 ; c. 99, s. 36 ; and c. 100, s. 68,
contains the following clause : —

' All indictable offences mentioned in this Act which shall be com-
mitted within the jurisdiction of the Admiralty of England and Ireland
shall be deemed to be offences of the same nature and liable to the same
punishments as if they had been committed upon the land in England
or Ireland, and may be dealt with, inquired of, tried, and determined
in any county or place in England or Ireland in which the offender shall
be apprehended or be in custody, in the same manner in all respects as
if they had been actually committed in that county or place ; and in
any indictment for any such offence, or for being an accessory to such
an offence, the venue in the margin shall be the same as if the offence had
been committed in such county or place, and the offence shall be averred
to have been committed " on the high seas " : Provided that nothing
herein contained shall alter or affect any of the laws relating to the govern-
ment of His Majesty's land or naval forces' (?/).

It is to be noted that these enactments do not expressly extend to
attempts to commit the crimes in question in the Admiralty jurisdiction.
From this it would seem to follow that Courts of Quarter Sessions
cannot, under the enactments, try such attempts, but that they are
cognisable at assizes under 7 & 8 Vict., c. 2 {ante, p. 39).

By sect. 9 of the Accessories, &c., Act, 1861 (24 & 25 Vict. c. 94) ;
' Where any person shall, within the jurisdiction of the Admiralty of
England or Ireland, become an accessory to any felony, whether the
same be a felony at common law or by virtue of any Act passed or to be
passed, and whether such felony shall be committed within that jurisdic-
tion or elsewhere, or shall be begun elsewhere or completed within that
jurisdiction, the offence of such person shall be felony' (z).

(to) R. v. Jones, 1 Den. 101; 2 0. &K. 165. on the land in England or Ireland. It

The indictment need not conclude cordra seems clear that, wherever an Act creates

formam statuti. R. v. Serva, 2 C. & K. 53. new offences, this is the proper form of

(x) R. V. Menham [1858], 1 P. & F. 369, enactment ; for, though in the case of

373, Wightman, J. offences against the law of nations, such as

iy) Framed on the similar clauses con- murder or piracy committed on the seas,

tained in 7 & 8 Geo. IV. c. 29, s. 77 ; 7 & 8 the general course of legislation has been

Geo. IV. c. 30, 3. 43 ; 9 Geo. IV. u. 31, s. 32 ; simply to provide for their trial, and no

9 Geo. IV. c. 55, s. 74 (I.) ; 9 Geo. IV. o. 56, doubt correctly, because, in the eye of the

s. 55 (I.) ; and 10 Geo. IV. c. 34, a. 41 (I.) ; law of England, they were offences of the

together with 7 & 8 Vict. u. 2. Some of same nature as if they had been committed

these enactments simply provided for the on land in England, yet it may well be

trial of offences committed within the doubted whether that be sufficient in the

jurisdiction of the Admiralty ; whilst others case of newly created offences ; and it is

provided in addition that the offences certainly much safer to have the provision

mentioned in the Act, which shall be com- with which this clause commences. C. S. G.

mitted within the jurisdiction of the (2) The rest of the section as to indict-

Admiralty shall be deemed to be offences ment is in similar terms to those above

of the same nature and liable to the same quoted from the other Crim. Law ConsoU-

punishments as if they had been committed dation 4.cts.

CHAP. Ill] Admiralty Jurisdiction. 41

Under these enactments, Courts of Assize (a) and Quarter Sessions (h)
for counties or boroughs have authority to try any offender apprehended
or in custody within their local jurisdiction for any offence or offences
mentioned in the Acts of 1861, committed on the sea, which they might
have tried if it had been committed within the local jurisdiction.

The Territorial Waters Jurisdiction Act, 1878 (41 & 42 Vict, c. 73) (c),
begins by two recitals, 'Whereas the rightful jurisdiction of His Majesty,
his heirs and successors extends, and has always extended, over the open
seas adjacent to the coasts of the United Kingdom, and of all other parts
of His Majesty's dominions to such a distance as is necessary for the
defence and security of such dominions '(c?), and 'whereas it is expedient
that all offences committed on the open sea within a certain distance of
the coasts of the United Kingdom, and of all other parts of His Majesty's
dominions, by whomsoever committed, should be dealt with according
to law.' By sect. 2: 'An offence committed by a person, whether he is
or is not a subject of His Majesty on the open sea within the territorial
waters of His Majesty's dominions, is an offence within the jurisdiction
of the Admiral, although it may have been committed on board or by
means of a foreign ship, and the person who committed such offence may
be arrested, tried, and punished accordingly.'

By sect. 3 : ' Proceedings for the trial and punishment of a person who
is not a subject of His Majesty and who is charged with any such offence
as is declared by this Act to be within the jurisdiction of the Admiral,
shall not be instituted in any Court of the United Kingdom, except with
the consent of one of His Majesty's principal Secretaries of State, and
on his certificate that the institution of such proceedings is in his opinion
expedient, and shall not be instituted in any of the dominions of His
Majesty out of the United Kingdom, except with the leave of the governor
of the part of the dominions in which such proceedings are proposed to
be instituted, and on his certificate that it is expedient that such pro-
ceedings should be instituted.'

By sect. 4: 'On the trial of any person who is not a subject of His
Majesty for an offence declared by this Act to be within the jurisdiction
of the Admiral, it shall not be necessary to aver in any indictment or
information on such trial that such consent or certificate of the Secretary
of State or Governor, as is required by this Act, has been given ; and the
fact of the same having been given shall be presumed, unless disputed by

(a) R. V. Dudley, 14 Q.B.D. 273. shore, ran down and sank a British ship,

(b) R. V. Peel, 32 L. J. M. C. 65, an in- whereby one of her passengers was drowned
dictment at Southampton Borough Quarter under circumstances which in English law
Sessions for larceny on a British ship on the would amount to manslaughter. He was
high seas. The accused was arrested in tried at the Central Criminal Court, but on
Southampton. The case was decided on appeal it was held by the majority of the
24&25Viot. c. 96, s. 115. The enactments court that there was no power to try
appear not to extend to attempts to offences committed by foreigners on board
commit the offences. foreign ships while within the three miles

(the 'Pranconia'), 2 Ex. D. 63. In that (d) This recital and s. 2 are declaratory

case the prisoner, who was a foreigner and of the law as laid down by the minority of

in command of a foreign ship, whilst the judges in R. v. Keyn. R. v. Dudley,

passing within three miles of the Enghsh 14 Q.B.D. 273.

42 Of Criminal Jurisdiction. [book i.

the defendant at the trial ; and the production of a document purporting
to be signed by one of His Majesty's principal Secretaries of State as
respects the United Kingdom, and by the Governor as respects any other
part of His Majesty's dominions, and witnessing such consent and certifi-
cate, shall be sufficient evidence, for all the purposes of this Act, of the
consent and certificate required by this Act.

' Proceedings before a justice of the peace or other magistrate, previous
to the committal of an offender for trial, or to the determination of the
justice or magistrate that the offender is to be put upon his trial, shall
not be deemed proceedings for the trial of the offence committed by such
offender, for the purposes of the said consent and certificate under this
Act.'

By sect. 5: 'Nothing in this Act contained shall be construed to be in
derogation of any rightful jurisdiction of His Majesty, his heirs or suc-
cessors, under the law of nations, or to affect or prejudice any jurisdiction
conferred by Act of Parliament or now by law existing in relation to
foreign ships, or in relation to persons on board such ships.'

By sect. 6: ' This Act shall not prejudice or affect the trial in manner
heretofore in use of any act of piracy as defined by the law of nations,
or affect or prejudice any law relating thereto (e), and where any act of
piracy as defined by the law of nations is also any such offence as is declared
by this Act to be within the jurisdiction of the Admiral, such offence may
be tried in pursuance of this Act, or in pursuance of any other Act of
Parliament, law, or custom relating thereto.'

By sect. 7 : ' In this Act, unless there is something inconsistent in the
context, the following expressions shall respectively have the meanings
hereafter assigned to them, that is to say : " The jurisdiction of the
Admiral " as under this Act includes the jurisdiction of the Admiralty
of England and Ireland, or either of such jurisdictions as used in any Act
of Parliament ; and for the purpose of arresting any person charged
with an offence declared by this Act to be within the jurisdiction of the
Admiral, the territorial waters adjacent to the United Kingdom or any
other part of His Majesty's dominions shall be deemed to be within the
jurisdiction of any judge, magistrate, or officer having power within such
United Kingdom or other part of His Maj esty's dominions to issue warrants
for arresting or to arrest persons charged with offences committed within
the jurisdiction of such judge, magistrate, or officer.'

' United Kingdom ' includes the Isle of Man, the Channel Islands,
and other adjacent islands.

' The territorial waters of His Majesty's dominions,' in reference to the
sea, means such part of the sea adj acent to the coast of the United Kingdom
or the coast of some other part of His Majesty's dominions as is deemed
by international law to bewithin the territorial sovereignty of His Majesty;
and for the purpose of any offence declared by this Act to be within the
jurisdiction of the Admiral, any part of the open sea within one marine
league of the coast measured from low water-mark, shall be deemed to
be open sea within the territorial waters of His Majesty's dominions.'

' Offence,' as used in this Act, means an act, neglect, or default of

(e) See post, Bk. ii. p. 253, 'Piracy.'

chAp. iii.j Admiralty Jurisdiction. 4S

such a description as would, if committed within the body of a county in
England, be punishable on indictment according to the law of England
for the time being in force.

' Ship ' includes every description of boat or other floating craft ;
' foreign ship ' means every ship which is not a British ship (/).

By sect. 686 (g) of the Merchant Shipping Act, 1894 (57 & 58 Vict. c.
60) : ' (1) where any person being a British subject is charged with having
committed an offence on board any British ship on the high seas, or in
any foreign port or harbour, or on board any foreign ship to which he
does not belong, or not being a British subject, is charged with having
committed any offence on board any British ship on the high seas, and
that person is found (h), within the jurisdiction of any Court in His
Majesty's dominions, which would have had cognisance of the offence
if it had been committed on board a British ship within the limits of
its ordinary jurisdiction, that Court shall have jurisdiction to try the
offence as if it had so been committed.

'(2) Nothing in this section shall affect the Admiralty Offences
(Colonial) Act, 1849 ' {i).

By sect. 687 (j): 'All offences against property or person committed
in or at any place either ashore or afloat out of His Majesty's dominions
by any master, seaman, or apprentice who, at the time when the offence
is committed, is or within three months previously has been employed
in any British ship, shall be deemed to be offences of the same nature
respectively, and be liable to the same punishments respectively, and
be inquired of, heard, tried, determined, and adjudged in the same
manner and by the same Courts and in the same places as if such offences
had been committed within the jurisdiction of the Admiralty of Eng-
land' (Jc). By sect. 689, power is given to a British consular officer to
detain any master, seaman, or apprentice employed on any British
ship, on complaint that any offence against property or person has
been committed by him, at any place, ashore or afloat, out of His Majesty's
dominions or on the high seas, and may send him in custody to the United
Kingdom or to any British possession, in which there is a court capable
of taking cognisance of his offence.

To prove that a ship is a British merchant ship, it is not essential
to produce the register or a copy thereof, it is sufficient to show that
she carries the British flag, and belongs to British owners (I).

The prisoner was convicted of manslaughter committed on board
a ship on the high seas, the ship was built at Kiel, in the duchy of Holstein,
and sailed thence to London, and thence on the voyage in which the
offence was committed. AU the officers and crew were foreigners ; the
prisoner was the second mate, and the deceased the master. The ship

(/) The definition is wide enough to in- of trial. R. v. Lopez, D. & B. 525, decided

elude foreign public vessels, but see the on 18 & 19 Vict. c. 91, s. 21 (rep.).

Parlement Beige, 5 P. D. 197, and Mail (i) 12 & 13 Vict. c. 96, post, p. 50.

Ships Act, 1891 (54 & 55 Vict. o. 31). (?) This section re-enacts 17 & 18 Vict.

(?) This section re-enacts the substance c. 104, s. 267.

of 18 & 19 Vict. c. 91, B. 21, and 30 & 31 (k) The rest of the section relates to

Vict. c. 124, s. 11. costs. See post, Bk. xii. e. v.

{h) The word ' found ' authorises trial at [1) R. v. Allen, 10 Cox, 405. E. v. Seberg,

any place where the accused is at the time L. R. 1 C. C. R. 264 : 39 L. J. M. C. 133.

44 Of Criminal Jurisdiction. [book i.

was sailing under the Englisli flag when the offence was committed.
The crew were told before sailing that Mr. Eehder was sole owner. He
was not born an Englishman. A certified copy of the register of the
' Gustav Adolph ' under the Merchant Shipping Act, 1854 (17 & 18 Vict,
c. 104), was admitted as prima facie evidence that the ship was a British
ship. Certain letters were put in, which, it was urged, showed a partner-
ship between Eehder and Ehlers, and it was urged that under ss. 18, 38,
and 103, the owner of a beneficial interest in a British ship must be
qualified in the same way as the owner of a legal interest ; that, even
admitting that the registration of the ship in the name of Eehder was
prima facie evidence that he was owner, it could be no evidence of Ehler's
qualification, and therefore the letters proving Ehler's interest in the
ship rebutted the prima facie evidence that she was a British ship. On
a case reserved, it was held that there was prima facie evidence that
she was a British ship ; as there was evidence of a certificate of registry
in London, wherein Eehder was described as the owner at that time
resident in London, and the ship was sailing under the British flag ; but
that the prima facie proof was rebutted by the proof that Eehder was
alien born ; and that there was no presumption that letters of deniza-
tion or naturahsation had been granted to him, by reason that he, being
ahen born, would have become liable to penalties under the Act for
registering the ship as belonging to a British owner (m).

By the Sea Fisheries Act, 1883 (46 & 47 Vict. c. 22, s. 18), ' For the
purpose of giving jurisdiction to courts under this Act, a sea-fishing
boat shall be deemed to be a ship within the meaning of any Act relating
to offences committed on board a ship, and every court shall have the
same jurisdiction over a foreign sea-fishing boat within the exclusive
fishery limits of the British Islands and persons belonging thereto as
such court would have if such boat were a British sea-fishing boat.'

By the Behring Sea Award Act, 1894 (57 & 58 Vict. c. 2 (n), persons
committing, procuring, aiding, or abetting a contravention of the Act
are guilty of a misdemeanor within the meaning of the Merchant Shipping
Act, 1854, and by the Sea Fisheries North Pacific Act, 1895 (58 & 59
Vict. c. 21), like provisions are made as to contravention of Orders in
Council (o).

To a count for murder which alleged to have been committed ' upon
the high seas,' it was objected that it ought to have averred that the
prisoners were on board a British ship, or that they were British subjects ;
and to counts alleging that the prisoner was master of a British ship
afloat in the river Elbe, and that he there committed the murder, it
was objected that these counts did not allege the murder to have been
committed ' on the high seas.' The objection was overruled by Wight-
man, J. (p).

These enactments apply only to British merchant ships. Offences
on public ships are dealt with under the Admiralty jurisdiction and the

(to) R. v. Bjornsen, L. & C. 545: 34 {p) R. v. Menham, 1 F. & F. 369. He

L. J. M. C. 180. said that as the alleged defects were on the

(m) Preserved by 57 & 58 Vict. c. 60, record he did not know whether he had

s. 745 (/). power to state a case under 11 & 12 Vict.

(o) Continued by 8 Edw. VII. u. 18. c. 78.

CHAP. III.] Admiralty Jurisdiction. 45

other statutes above mentioned, or the Naval Discipline Act
(29 & 30 Vict. c. 109). 'British ship' is defined by sect. 1 of the
Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), as one owned wholly
by British subjects by birth or naturalisation or denizens, or by bodies
corporate, established, and subj ect to the laws of some part of His Ma j esty's
dominions, and having their principal place of business in these dominions.
A prisoner was charged at the Liverpool Assizes with the wilful murder
of the captain of the hulk 'Kent' in the Bonny River, Africa. It was
proved that the 'Kent' had been a sailing ship, and was registered as a
British ship though not British built. She had been for eighteen months
dismasted and used as a floating depot in the Bonny River for a line of
steamers trading from Liverpool. She floated in the tideway of the
river and hoisted the British ensign at the peak. The prisoner was
proved to have seized the captain and thrown him overboard, and he
was not seen again. Archibald, J., held that there was sufficient evidence
that the ' Kent ' was a British ship to give the Court jurisdiction, and
that it was not necessary that the crime should be wholly completed
on board such ship {q). By sect. 2, a vessel required to be registered
as a British ship, and not so registered is not recognised as a British
ship. By sect. 72, ' where it is declared by this Act that a British ship
shall not be recognised as a British ship, that ship shall not be entitled
to any benefits, privileges, advantages, or protection usually enjoyed
by British ships, nor to use the British flag or assume the British national
character, but so far as regards the payment of dues, the Hability to pains
and penalties, and the punishment of offences committed on board such
ship or by any persons belonging to her, such ship shall be dealt with in
the same manner in all respects as if she were a recognised British ship ' (r).
Sect. 687 applies to alien members of the crew as well as to British
subjects. In R. v. Lopez (s), upon an indictment for wounding, with
intent to do some grievous bodily harm, it was proved that the prisoner,
a foreigner, being a sailor and one of the crew of a British ship, maliciously
and unlawfully wounded Smith, also a foreigner and a sailor and one
of the crew of the ship, whilst on the high seas and in the same ship,
was tried and convicted at the Assizes at Exeter ; and upon a case
reserved, the conviction was affirmed. He was not found within the
jurisdiction of the Court at Exeter, but was brought into the jurisdiction
in custody and against his will having been ' found ' in the ship (t).
Lord Campbell, C.J., in giving the judgment of the Court said : ' We
are all of opinion that the conviction must be sustained. We have no
doubt that the offence committed by the prisoner was, under the circum-
stances, an offence against the laws of England. The prisoner, a foreigner,
was in an English ship ; he was under the protection of English laws,
and he therefore owed obedience to the English laws, and was guilty
of an offence against those laws when he maliciously wounded another
foreigner, one of the crew of the same ship, on the high seas. It is

iq) R. V. Armstrong, 13 Cox, 184, Archi- decided on the corresponding terms of 18

bald, J. • & 19 Vict. c. 91, s. 21.

{r) See R. v. Seberg, L. R. 1 C. C. R. 264 : {t) So argued. The case reserved did

39 L. J. M. C. 133. not state how he came into custody.

(s) D. & B. 525; 27 L. J. M. 0. 48,

46 Of Criminal Jurisdiction. [book i.

unnecessary to enter into a discussion of the authorities cited to prove
that proposition, — they are quite overwhehning. Then the only other
question is, whether there was jurisdiction under the commission of
oyer and terminer to try the prisoner at Exeter for that offence ; and
upon that point we entertain as httle doubt. The Court at Exeter
would not have had jurisdiction {u) before 18 & 19 Vict. c. 91, s. 21 {v) ;
but that statute is quite conclusive on the subject, and seems to have
been passed for the purpose of removing any doubt that might arise.
It provides that offences committed by foreigners in British vessels on
the high seas may be tried by any Court within the jurisdiction of which
the offender is found, if the offence is one which would have been
cognisable by such Court, supposing it to have been committed within
the limits of its ordinary jurisdiction. Here the ofEence, if committed
within the county of Devon, would certainly have been triable at
Exeter ; and as the prisoner was found within that jurisdiction, it is
the same as if the ofience had been committed within the limits of that
jurisdiction ; and we therefore think there was clearly jurisdiction in
the Court at Exeter to try him there, and that he was legally convicted.'
This decision really turned on 17 & 18 Vict. c. 104, s. 267 [uu), but
independently of legislation the ofEence was within the Admiralty juris-
diction {vv).

English Courts have not except in the case of piracy jure gentium (w)
any jurisdiction to try any person for an offence committed on or by
means of a foreign, public or private vessel outside British territorial
waters (x). On the high seas a ship whether public or private is considered
for purposes of jurisdiction a part of the territory of the nation to which
the ship belongs, and (except in the case of piracy jure gentium), as subject
only to the law of the flag which she is entitled to fly. In this context
the term ' high seas ' does not include the territorial waters of a nation
other than that to which the ship belongs. The result of the rule is that a
British subject is not punishable by the law of England for offences
committed on the high seas on a foreign ship, whether he is or is not a
member of the crew of the ship ; and that a foreigner committing an
offence on a British ship on the high seas is amenable to British justice
whether he is or is not a member of the crew (y).

In R. V. Depardo (z) it was held that there was no jurisdiction to try
in England under a commission issued in pursuance of 33 Hen. VIII.

{«) ' This dictum is unnecessary and high seas killed the captain and some of the

erroneous. In the argument, Cookburn, crew and took the ship back to China.
C.J., said : " There is strong opinion that {x) See observations of Sir E.. PhUhmore

but for the venue a person committing an in the ' Princess Boyal ' [1870], L. R. 3 Adm.

offence on the high seas on an English ship & Eccl. 41, 48. No owner or part owner

would have been amenable to punishment of the vessel was domiciled in England, and

at the common law," and that opinion is the master was a foreigner,
clearly right.' C. S. G. {y) 57 & 58 Vict. o. 60, d. 686, supra,

(v) Repealed and re-enacted as 57 & 58 p. 43.
Vict. c. 60, B. 686, supra, p. 43. (z) [1807] 1 Taunt. 26 ; R. & R. 134.

(uu) Repealed and re-enacted as 57 & 58 In this case there was an argument that

Vict. c. 60, s. 687, ante, p. 43. the alien had by this entering into the

[vv) R. V. Anderson, L. R. 1 C. 0. R. 161. merchant service owed a local and temp-

(w) Att.-Gen. for Hong Kongu. Kwok a orary aUegianoe. The offence would be

Sing, L. R. 5 P. C. 180, a case in which triable under 57 & 58 Vict. c. 60, s. 686.
Chinese coolies on a French ship on the

CHAP. III.] Admiralty Jurisdiction. 47

c. 23 (a) and 43 Geo. III. c. 113, s. 66 (h) ; an indictment for man-
slaughter of an Englishman, committed in China, by an ahen enemy
who had been prisoner of war and was at the time of the alleged offence,
acting as a mariner on a British merchant ship.

In R. V. Lewis (c) a foreigner on a foreign ship on the high seas, inflicted
a blow on another foreigner which resulted in the death of the latter.
The death took place in England. It was held that the offence was not
rendered cognisable in England by 9 Geo. IV. c. 31, s. 8, by reason of the
fact that the death occurred in England, because the act which caused the
death was not cognisable in England, the accused not being a British
subject, and not falUng within sect. 2 of the Act. The enactments
referred to are repealed and replaced by 24 & 25 Vict. c. 100, ss. 9, 10.

Homicide partly at Sea, partly on Shore. — ^Where a person was struck,
&c., upon the high seas, and died upon shore, the admiral had no cognis-
ance of the offence (d) ; and it was doubtful whether such offence could
be tried at common law (e). By 24 & 25 Vict. c. 100, s. 10, ' Where any
person being feloniously stricken, poisoned, or otherwise hurt upon the
sea, or at any place out of England or Ireland, shall die of such stroke,
poisoning, or hurt in England or Ireland, or being feloniously stricken,
poisoned, or otherwise hurt at any place in England or Ireland, shall die of
such stroke, poisoning, or hurt upon the sea, or at any place out of England
or Ireland, every offence committed in respect of any such case, whether
the same shall amount to the offence of murder or of manslaughter, or of
being accessory to murder or manslaughter, may be dealt with, inquired
of, tried, determined, and punished in the county or place in England or
Ireland in which such death, stroke, poisoning, or hurt shall happen, in
the same manner in all respects as if such offence had been wholly
committed in that county or place' (/).

Upon an indictment for manslaughter it appeared that the prisoner,
who was not a British subject, shipped on board ship at New York, and
signed articles to serve as a seaman therein, and so did the deceased, who
was also not a British subject. The ship was American owned, com-
manded by an American master, and sailed under the flag of the United
States. The prisoner during the voyage to Liverpool exercised much
cruelty to the deceased, of which he died at Liverpool ; the last act of
cruelty was committed on the high seas four days before the ship arrived
at Liverpool. Upon a case reserved, it was held that the prisoner was
not liable to be tried in England. The Court considered that 9 Geo.
IV. c. 31, s. 8 (g), was obviously intended to prevent a defeat of justice,
from the difficulty of trial where the death occurred in a different place
from that at which the blow causing it was given ; and ought not to be
construed as making a homicide cognisable in England by reason only
of death occurring here, unless it would have been so cognisable if the

(a) Eepealed in 1828 (9 Geo. IV. c. 31). and 10 Geo. IV. o. 34, s. 11 (I), with a,

(6) Repealed in 1861 (24 & 25 Vict. modification so as to include accessories

c. 101). before the fact in manslaughter. See

{d) 2 Hale, 17, 20; 1 East, P. 0. 365, common law on the subject was by 2

366. Geo. II. o. 21, repealed in 1828.

(/) Taken from 9 Geo. IV. c. 31, s. 8 (E); s. 10, supra.

48 Of Criminal Jurisdiction. ibook i.

death had ensued at the place where the blow was given {h), the homicide
would have been, in this particular case, by sect. 8, if the offender had
been a British subject, but not otherwise {i).

Where a person standing on the shore of a harbour fired a loaded
musket at a revenue cutter which had struck upon a sandbank in the sea,
about a hundred yards from the shore, by which another was maliciously
killed on board the boat, it was held that the trial must be in the
Admiralty Court, and not at common law (/).

It is said that a foreigner illegally detained upon a British ship is not
liable for acts done on the ship to effect his escape {h). But in respect
of acts not done for such purposes he is liable as if he were voluntarily
aboard. In E. v. Sattler {I) upon an indictment for murder, tried at the
Central Criminal Court, it appeared that S. the prisoner was a foreigner
and had committed a larceny in England, and then went with part of the
stolen property to Hamburg. The deceased, who was a detective officer
of the London police force, and a British subject, with the assistance of the
police of Hamburg, arrested S. there, and brought him against his will on
board an English steamer trading between Hamburg and London, in
order that he might be tried for the larceny. Hamburg is on the river
Elbe, sixty miles from the sea ; but the tide flows higher up than the
place where the steamer was when S. was taken on board. The steamer
left Hamburg on November 21, S. being in irons, and on November 22,
whilst on the high seas, he shot the deceased, who died of the wound. If
the killing had been by an Englishman, in an English county, it would
have been murder. The deceased had no warrant ; and a case was
reserved upon the question whether there was any jurisdiction to try S.
at the Central Criminal Court. It was argued for the prisoner, (1) that
the original arrest at Hamburg was unlawful and that the prisoner was
illegally taken on board the steamer (m) ; (2) that as the prisoner was
brought by force against his will into British jurisdiction no allegiance was
created. For the Crown it was contended, that it was a general principle
that a ship, public or private on the high seas, was, for the purpose of
jurisdiction over crimes therein committed, a part of the territory of the
country to which the ship belongs ; and a person coming voluntarily or
involuntarily on board an English ship was as much amenable to the

(h) Now i-cpresented by 24 & 25 Vict. K. 5S. In that case aliens were tried (under

V. 100, s. 10, ante, p. 47. 7 & 8 Vict. o. 2) for murder on a Brazilian

(»') R. V. Lewis, Dears & B. 182. See vessel which had been seized by a British

R. V. Coombes, ante, p. 33. cruiser for being concerned in the slave

(j) In Ireland it was necessary to issue trade. The majority of the Court held

a special commission under 11, 12, & 13 that there was no jurisdiction, because

Jac. I. c. 2 (I) ; and 23 & 24 Geo. III. u. 14, there was not sufficient evidence to show

s. 4 (I), for the trial of aU offences com- that the vessel was lawfully in the posses-

mitted on the seas ; but in England such sion of the British Crown. The persons

offences might be tried under the ordinary responsible for the detention are liable to

commissions of Oyer and Terminer, or Gaol indictment under English law R v

DeUvery, by 7 & 8 Vict. e. 2. 24 & 25 Vict. Lesley, Bell, 220.

c. 100, s. 68 follows that Act in providing (I) D. & B. 525 ; 27 L. J. M. C 48 •

for the trial and form of indictment in such ante, p. 34.

cases, and renders the law the same in both (m) There was no extradition treaty in

countries. force between Great Britain and the free

(k) See R. V. Serva, I Den. 104 j 2 C. & city of Hamburg.

Chap, hi.] Admiralty Jurisdiction (Colonies). 49

criminal law of England as if he came voluntarily or involuntarily into an
Bnglisli county (n).

Lord Campbell in giving the judgment of the Court said : ' We think
it equally clear that, although the prisoner was a foreigner, the offence of
which he was convicted was an offence against the laws of England.
Here a crime is committed by the prisoner on board an English ship
on the high seas, which would have been murder if the kilHng had been
by an Englishman in an English county ; and we are of opinion that,
under these circumstances, whether the capture at Hamburg and the
subsequent detention were lawful or unlawful, the prisoner was guilty of
murder and an offence against the laws of England ; for he was in an Eng-
lish ship, — part of the territory of England, — entitled to the protection
of the English law, and he owed obedience to that law ; and he committed
the crime of murder — that is to say, he shot the detective officer, not for
the purpose of obtaining his liberation, but for revenge, and of malice
prepense. Then comes the question, whether the Central Criminal Court
had jurisdiction to try the prisoner for this offence ; and it appears to us
that the late Act 18 & 19 Vict. c. 91, s. 21 (o), was framed for the purpose
of obviating, and does obviate, all doubt upon such a subject. A man is
" found " wherever he is actually present, and the prisoner was " found "
within the jurisdiction of the Central Criminal Court, and we are all of
opinion that the Court had jurisdiction to try him. It was contended that
the prisoner was not " found " within the jurisdiction, because he was
brought within it against his will ; but, upon the construction of the
statute, we are all of a different opinion.' And from the decision in E. v.
Anderson (p) it would seem that the fact of the presence of a foreigner on
board a British ship whether he is there as a member of the crew or
casually, and whether voluntarily or involuntarily is enough to give
jurisdiction to British Courts over crimes by him committed on the ship.

Offences in the Admiralty Jurisdiction. (Colonies and India).^
The statutes above referred to relate only to the trial in England or
Ireland of offences committed within the jurisdiction of the admiral.
Colonial legislatures have not as a general rule any authority to give
jurisdiction to the offences committed outside the territory or waters of
the possession (q).

The Offences at Sea Act, 1806 (46 Geo. Ill, c. 54) (r), enacts, sect. 1.
that, ' all treasons, piracies, felonies, robberies, murders, conspiracies, and
other offences of what nature or kind soever, committed upon the sea, or
in any haven, river, creek, or place, where the admiral or admirals have
power, authority, or jurisdiction, may be inquired of, tried, heard, deter-
mined and adjudged, according to the common course of the laws of this

(m) The questions reserved were, ' Was 58 Vict. o. 60, s. 686, ante, p. 43.
the custody of the prisoner on board the {p) L. R. 1 C. C. R. 161 ; 38 L. J. M. C. 12.

steamer lawful, and is there any distinction (q) See Macleod v. Att.-Gen. of N. S. W.

as to the times when the steamer was in [1891], A.C. 455. Hardcastle on Statute

the river Elbe, and whilst she was upon the Law (4th ed. by Craies), p. 408.
high seas ? ' [On this the Court gave no {r) The full title is, ' An Act for the more

opinion.] And, ' Supposing the custody speedy trial of offences committed in dis-

not to have been lawful, was the killing tant parts on the sea.' The preamble

necessarily only manslaughter ? ' recites 28 Hen. VIII. c. 15, and the Piracy

(o) Repealed and incorporated in 57 & Act, 1698 (11 Will. III. c. 7), post, p. 259.
VOL. I. E

50 Of Criminal Jurisdiction. lbook i.

realm used for offences committed upon the land within this realm, and
not otherwise, in any of His Majesty's islands, plantations, colonies,
dominions, forts, or factories, under and by virtue of the King's com-
mission or commissions, under the Great Seal of Great Britain, to be
directed to any such four or more discreet persons as the Lord Chancellor
of Great Britain, Lord Keeper, or Commissioner for the custody of the
Great Seal of Great Britain for the time being, shall from time to time
think fit to appoint ; and that the said commissioners so to be appointed,
or any three of them, shall have such and the like powers and authorities
for the trial of all such murders, &c., within any such island, &c., as any
commissioners appointed according to the directions of the Offences at Sea
Act, 1536, by any law or laws now (May 23, 1806) in force, have or would
have for the trial of the said ofEences within this realm.' And it further
enacts, that ' all persons convicted of any of the said ofEences so to be
tried, &c., shall be hable to the same pains, &c., as, by any laws now
(May 23, 1806) in force, persons convicted of the same would be liable to
in case the same were tried, &c., within this realm, by virtue of any
commission according to the directions of the Offences at Sea Act, 1536.'

The Admiralty Offences (Colonial) Act, 1849 (12 & 13 Vict. c. 96),
enacts sect. 1, that ' if any person within any colony shall be charged
with the commission of any treason, piracy, felony, robbery, murder,
conspiracy, or other offence, of what nature or kind soever committed
upon the sea {ss), or in any haven, river, creek, or place, where the admiral,
or admirals, have power, authority, or jurisdiction, or if any person
charged with the commission of any such offence upon the sea, or in
any such haven, river, creek, or place, shall be brought for trial to any
colony. Then, and in every such case, all magistrates, justices of the
peace, public prosecutors, juries, judges, courts, public officers, and
other persons in such colony, shall have, and exercise, the same jurisdiction
and authority for inquiring of, trying, hearing, determining, and adjudg-
ing such offences, and they are hereby respectively authorised and
required to institute and carry on all such proceedings for the bringing
of such person so charged as aforesaid, to trial and for and auxiliary
to and consequent upon the trial of any such person, for anj'^ such offence,
wherewith he may be charged as aforesaid, or by the law of the colony
would, and ought, to have been had and exercised, or instituted and
carried on by them respectively, if such offence had been committed,
and such person had been charged with having committed the same,
upon any waters situate within the limits of any such colony, and within
the limits of the local jurisdiction of the courts of criminal justice of such
colony ' (s).

Sect. 3 : ' Where any person shall die in any colony of any stroke,
poisoning, or hurt, such person having been feloniously stricken, poisoned,
or hurt, upon the sea, or in any haven, river, creek, or place, where the
admiral, or admirals, have power, authority, or jurisdiction, or at any
place out of such colony, every offence committed in respect of any

(ss) As to the great lakes in North (s) S. 2, relating to punishments, was

America see E, D. Meikleham [1906], 11 Ont. superseded by 37 & 38 Vict. c. 27, s. 3,
L. R. 366. infra, and repealed in 1891 (S. L. R.).

(3HAP. III.] Admiralty Jurisdiction {Colonies). Si

such case, whether the same shall amount to the offence of murder or
manslaughter, or of being accessory before or after the fact to murder
or manslaughter, may be dealt with, inquired of, tried, determined,
and punished, in such colony in the same manner, and in all respects as
if such offence had been wholly committed in that colony ; and if any
person in any colony shall be charged with any offence in respect of any
person, who, having been feloniously stricken, poisoned, or otherwise
hurt, shall have died of such stroke, poisoning, or hurt, upon the sea,
or in any haven, river, creek, or place, in which the admiral, or admirals,
have power, authority, or jurisdiction, such offence shall be held for
the purpose of this Act to have been wholly committed on the sea ' {t).

Sect. 5 : ' For the purposes of this Act colony shall mean any island,
plantation, colony, dominion, fort, or factory, of His Majesty, except any
island within the United Kingdom, and the islands of Man, Guernsey,
Jersey, Alderney, and Sark, and the islands adjacent thereto, respec-
tively ' {u). The Act of 1849 was extended to British India in 1860 (23 &
24 Vict. c. 88) (v), and is not affected by any of the provisions of the
Merchant Shipping Act, 1894 (57 & 58 Vict. 60) (w).

By the Admiralty Offences Colonial Act, 1860 (23 & 24 Vict. c. 122), it
is made 'lawful for the legislature of any of His Majesty's possessions
abroad to enact by any law or ordinance to be by them made in the usual
manner that where any person being feloniously stricken, poisoned, or
otberwise hurt at any place within the limits of such possession, shall
die of such stroke, poisoning, or hurt upon the sea or at any place out
of the limits of such possession, every offence committed in respect of
any such case, whether the same shall amount to the offence of murder or
manslaughter, or of being accessory before or after the fact to murder or
manslaughter, may be dealt with, inquired of, tried, determined, and
punished, in the possession within the limits of which such stroke,
poisoning, or hurt shall happen in the same manner in all respects as
if such offence had been wholly committed within the limits of such
possession, or such legislature may by any such law or ordinance to be
made, as aforesaid, to the like effect.'

The Courts Colonial Jurisdiction Act, 1874 (37 & 38 Vict. c. 27),
enacts (sect. 3), that ' When by virtue of any Act of Parhament now,
or hereafter to be, passed, a person is tried in the court of any colony {x)
for any crime or offence committed on the high seas or elsewhere out of
the territorial Umits of such colony, and of the local jurisdiction of such

(t) The terms of this section were taken jurisdiction. S. 2 of the Act of 1860 provides

from 9 Geo. IV. u. 31, o. 8, repealed as to for the case of persons entitled to be tried

England in 1861, and replaced by 24 & 25 before the Supreme Court of a presidency in

Vict. c. 100, s. 10 (ante, p. 47). 9 Geo. IV. India. See also Mayne, Ind. Or. L. (ed.

c. 31, s. 8 was extended to India by 9 1896), p. 263 ; Ilbert, Govt, of India (2nd

Geo. IV. c. 74, s. 56, as to which see Nga ed.), 243-245.

Hoong V. R., 7 Moore, Ind. App. 72 ; Ilbert, (w) Sees. 686, subs. 2, ante, p. 43.

Govt, of India (2ud ed. ), 242. • (x) Defined by s. 2 so as to exclude

(u) S. 4 provides that the Act shall not the British Islands but to include British

affect the jurisdiction given to the Courts India, and any plantation, territory or

of New South Wales and Van Diemen's settlement elsewhere within the King's

Land by 9 Geo. IV. o. 83. dominions. Possessions under a central

(») The High Court of Bengal has, under legislature are deemed to be one colony

33 Geo. III. c. 52, s. 156, power to try under the same local government.

offences committed within the Admiralty

52 ^ " Of Criminal Jurisdiction. [book i.

Court, 01 if committed within such local jurisdiction, made punishable
by that act, such person shall, upon conviction, be liable to such punish-
ment as might have been inflicted upon him if the crime or offence
had been committed within the local jurisdiction of the court, and no
other, any thing in any Act to the contrary notwithstanding : Provided
always that if the crime or offence is a crime or offence not punishable
by the law of the colony in which the trial takes place, the person shall,
on conviction, be hable to such punishment other than capital punish-
ment as shall seem to the Court most nearly to correspond to the punish-
ment to which such person would have been liable in case such crime or
offence had been committed in England/ Offences within sects. 686 &
687, of the Merchant Shipping Act, 1894 (57 & 58 Vict. 60), are triable
in the criminal Courts of British possessions {y).

The Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict. c. 27),
denies to the Courts created by or under the Act any 'jurisdiction under
this Act to try or punish any person for an offence which, according to the
law of England, is punishable on indictment,' sect. 2, sub-s. 3 (c).

Jurisdiction over Offences initiated outside, but taking Effect within
the Realm. — The question from time to time arises whether, and to what
extent, and on what principle an English court has jurisdiction to try in-
dictments, in respect of acts done outside the realm, or initiated outside
the realm, and taking effect within it. So far as concerns acts done on
the sea, whether within or without the jurisdiction of the Admiralty of
England, this subject is treated ante, pp. 31 d, seq. As regards offences
completely committed on land outside England ; it seems clear that no
jurisdiction to try in England can be asserted except under the express
provisions of a statute.

But there remains another class of case in which the acts constituting
the offence take place partly in England and partly on land outside
England, or on a vessel not subject to the jurisdiction of the English
Courts.

From the point of view of international law the cases fall into three
divisions —

1. Where the act is initiated in another part of the British Empire,

and takes effect in England.

2. Where the act is by a British subject, and is initiated in a foreign

country, but takes effect in England.

3. Where the act is initiated in a foreign country, and takes effect in

England, but is done by an aUen.
In R. V. Johnson (z), an indictment was found in Middlesex against
a judge of the Court of Common Pleas in Ireland, for causing the publica-
tion in Westminster of a seditious libel. The defendant filed a plea to
the jurisdiction of the Court setting forth that he was a native of and
resident in Ireland, and that Ireland was subject to its own laws and
not those of Great Britain, and had its own competent Courts. This
plea on demurrer was quashed for not stating what Court was competent to
try the offence : but it was intimated that the proper mode of setting

(«/) See R. V. Hinde [1902], 22 N .Z. L. R. (a) [1805] 6 East, 583.

43*5.

CHAP. III.] Offences Initiated Outside the Realm. 53

up the defence that no English Court could try the defendant was by-
plea in bar or by evidence on plea of not guilty. Lord EUenborough
said (a), 'If then the circumstances attending the defendant, of his birth
in Ireland and his residence there at the time of the publication made
in this country, have the effect of rendering him not punishable in any
Court of this country for such publication, this impunity must follow
as a consequence of its being no crime in the defendant so circumstanced
to publish a libel in Middlesex. And indeed the argument rested wholly
upon this position, that the defendant owed no obedience to the laws
of this part of the United Kingdom, and if he owed no obedience then
he had been guilty of no crime in acting contrary to them (6). Such
defence, if it can be, may prove available in law as matter of absolute
bar.'

Judge Johnson was subsequently tried on the indictment (c), and
after certain legal arguments (not involving the point left open as above
slated), was found guilty. Lord EUenborough, C.J., said : ' One who
procures another to publish a libel is no doiibt guilty of the publication
in whatever county it is in fact published in consequence of his procure-
ment.' This ruling, while undoubtedly correct as between county and
county of England (d), does not specifically deal with a case in which
the offender charged with procuring is not within the realm when he
does the acts on which it is sought to make him criminally responsible.

In R. V. Munton (e), a governnient store-keeper in Antigua, while
there resident, transmitted to his agent in London false returns, which
were by the agent delivered at the Navy office in London. He was
indicted in Middlesex for colluding with contractors by these false vouchers
to defraud the Crown. It was objected that the Court could not take
cognisance of matters committed out of the realm. Lord Kenyon held
that that objection would be valid ' where the criminal matter arose
wholly abroad,' and agreed that in such a case to warrant the inter-
position of the Court of King's Bench an Act of Parliament was expressly
necessary: but he ruled that an offence was committed in London where
the false returns were received and the fraud completed by their allowance,
and that the jurisdiction of the Court then attached.

In R. V. Brisac (/), an information was filed at common law and tried
in Middlesex for conspiracy between the captain and purser of a man-of-
war, for planning and fabricating false vouchers to cheat the Crown.
The evidence showed that the planning and fabrication took place on
the high seas at Brassa Sound or at Lerwick in Shetland. The only
acts proved to have been done in Middlesex were the delivery of the
vouchers to the commissioners of victualling by innocent persons to whom
they had been transmitted by the defendants, and the application for
a receipt of payment there by the holder of a bill of exchange, the

(a) 6 East, 601. (c) [1793] 1 Esp. 62 ; 6 East, 590, oit.

(b) The Irish Courts rejected this con- There is no doubt that now such an offence
tention as unfounded in law. See per by an official committed outside Great
McCleland, B., 6 East, 591, oit. Britain could be dealt with under 42 Geo.

id) See R. v. Bowes [1787], 4 East, 171, (/) 4 East, 164. See Greaves Crim.

cit. Cons. Acts (2nd ed.) 34.

54 Of Criminal Jurisdiction. [book i.

consideration for which was evidenced by the false vouchers. After
conviction it was objected on behalf of Brisac that the offence charged
was comnaitted on the high seas and could only be tried by virtue of
39 Geo. III. c. 37 (g), under a commission granted under 28 Hen. VIII.
c. 15 {h). Grose, J., ruled (1) that these statutes did not take away the
jurisdiction of the Courts of common law to try offences which they
had power to try before the acts were passed ; (2) that conspiracy may
be tried wherever any distinct overt act of conspiracy is in fact com-
mitted. In support of this proposition he relied on E. v. Bowes {i),
a case of conspiracy in which some overt acts were done in Middlesex,
and the rest in other counties.

In R. V. Buttery (/) the defendant was indicted and tried in Hereford-
shire for obtaining goods by false pretences. The pretences were made
in Herefordshire, and the goods supplied in Monmouthshire. It was
ruled that the indictment was laid in the wrong county. The decision
turned on the interpretation of 30 Geo. II. c. 24 (rep.), as to obtaining
property by false pretences : and the only question was as to the proper
county to try acts undoubtedly cognisable by English law. Certain
doubts existed at that date as to whether felonies or misdemeanors
committed partly in one county and partly in another could be tried
in either (Jc), and these doubts were as to both felony and misdemeanor
settled in 1826 (7 Geo. IV. c. 64, s. 12) (1), as between the counties of
England. This decision does not . touch cases in which the person
accused was not in England when the act alleged to constitute the crime
was done there (m).

In R. V. Ellis (n) the indictment was for obtaining credit by false
pretences contrary to sects. 11 (13) and 13 (1) of the Debtors Act, 1869.
The evidence was that the defendant carried on business in the county
of Durham, and that goods were delivered to him there by a firm in
Glasgow on the faith of false representations made by the defendant in
Glasgow to the firm. On conviction, a question was raised as to the
jurisdiction to try the offence in the county of Durham. The conviction
was upheld. The majority of the (o) Court held that the offence consisted
in obtaining the goods, and not in making the false representations,
and that an English Court can try for obtaining goods within the jurisdic-
tion by false representations made beyond the jurisdiction. Wright, J.,
held that the possession of the goods could on the evidence be treated
as had in the county of Durham under a representation made in Glasgow,
but continuing in Durham. The majority relied on the authority of R. v.
Buttery and R. v. Burdett (/c) : but Wright, J., considered R. v. Buttery
as inapplicable to a case where the pretence was in another country,
saying, ' Where the false pretence has been made in a foreign country,
the law of that country as to false pretences may not be the same as it is
here ' (p).

(g) Ante, p. 37. (I) Ante, p. 20.

W Ibid. (m) R. v. EUis [1899], 1 Q.B. 230, 241,

(i) [1787] 4 East, 171 cit. Wright, J.

(j) [1820] 4 B. & Aid. 179 cit. («) [1899] 1 Q.B. 230 : 68 L. J. Q.B. 103.

(k) Sea B. v. Burdett, 4 B. & Aid. 95 : 1 (o) Hawkins, Wills and Bruce, JJ

St. Tr. (N. S.) 1, vost, p. 1031. (p) I.e. p. 241.

CHAP. III.] Offences Initiated Outside the Realm. 55

In R. V. Oliphant {q) the defendant was indicted for omitting or con-
curring in omitting certain particulars from the cash-book of his employers,
contrary to the Falsification of Accounts Act, 1875 (38 & 39 Vict. c. 24).
The evidence was that he was employed as manager in Paris of a branch
establishment of a firm carrying on business in London : that it was his
daily duty to make up on slips an account of all sums received by him in
Paris, and transmit the slips to London, that the amounts might be entered
in a cash-book kept in London : that he had received and fraudulently
misappropriated certain sums, and omitted to enter the amounts so taken
in the slips transmitted, knowing and intending that the sums omitted
from the slips would, in consequence, be omitted from the cash-book.
It was objected that there was no jurisdiction to try the offence in England.
The Court overruled the objection on the authority of R. v. Munton (r)
and R. v. Brisac (s). Reference was made arguendo to R. v. Johnson {t),
R. V. Girwood (m), and R. v. Coombes {v).

In R. V. von Veltheim {w) the defendant, an alien, was convicted under
sect. 44 of the Larceny Act, 1861, for sending a letter containing menaces
without reasonable and probable cause. It was proved that the letters
were posted in Russia and received in England, and that the defendant
was in Hungary when he gave the letters to an agent to be posted.

In two cases the question has arisen whether acts initiated in England,
but taking effect abroad, could be regarded as constituting offences
against English law, or against the law of the country in which the
act took effectr In R. ■;;. Holmes {x) the indictment was in respect of
false pretences contained in a letter posted in Nottingham, addressed to
G. in France, by means of which G. was induced to send from France to
Nottingham a draft which the prisoner there cashed. The decision was
based on R. v. Burdett {anie, p. 54), and no attention was called to the dis-
tinction drawn by Wright, J., in R. v. Ellis (supra) to the difference between
venue and jurisdiction (y). The case can be maintained on the ground
that the draft was received in Nottingham by means of the pretence (z).
In R. ■;;. Nillins (a) N., being in Southampton, wrote and sent to Germany
letters alleged to contain false pretences, and addressed to persons carry-
ing on business in Germany, and thereby induced them to deliver goods
to his order to persons in Hamburg. N. also sent to persons in Germany
cheques alleged to be forged. An application was made for his extradi-
tion to Germany in respect of the false pretences and forgery. On
proceedings for habeas corpus to prevent extradition, it was argued for the
Crown that there was ample evidence of an offence committed in Germany,
and that N. fell within the definition of fugitive criminal in the Extradition
Act, 1870, sect. 26. Cave, J., said, ' It is clear that there may be cases

iq) No. 2 [1905], 2 K.B. 67. fired from the shore, was held to be cognis-

(r) Supra, p. 53. able by the Admiralty jurisdiction. Vide

(a) Supra, p. 52. ante, p. 33.

(«) 29 St. Tr. at 392, ante, p. 53. (w) Cent. Crim. Ct. 12 Feb. 1908, Philli-

(a) [1776] 1 Leach, 142, where an indict- more, J.

ment for sending a threatening letter, (x) 12 Q.B.D. 23 ; 53 L. J. M. C. 37.

which he had caused to be posted in the {y) See British S. Africa Co. v. Companhia

City of London, was held to lie in Middle- de Mogambique [1903], A.C. 602.

sex, where the addressee received the letter. (s) R. v, Ellis, ubi supra.

(v) [1785] 1 Leach, 388, where the killing (o) 53 L. J. M. C. 157, Cave, Day and

of a sailor in a boat on the sea, by a shot A. L. Smith, JJ.

56 Of Criminal Jurisdiction. [book i.

where a person has committed a crime in a foreign country without ever
being there (6). This decision, if of sufficient authority, states a principle
equally applicable to criminal acts taking effect in England done by
persons in foreign countries by means of the post.

In the case of a crime committed through an innocent agent, e.gr.,
where a messenger is sent to cash a forged cheque, or a packet containing
poison, or where a letter containing false pretences or threats, or a
defamatory libel is sent through the post, the person who employs the
agent or the post office in aid of his criminal purpose is treated as the
principal offender (c). Where the offence is committed in England or
within the Admiralty jurisdiction, the principal offender is regarded as
constructively present where the cheque was uttered, or the poison or
letter delivered, though he would apparently be equally triable by the
Court having jurisdiction in respect of the place where the crime was
set in motion. In E. v. Brisac {d) Grose, J., said : ' In the present case
the delivering the vouchers, &c. (e), to the commissioners of the victual-
ling office in Middlesex were the acts of both the defendants done in the
county of Middlesex. I say it was their acts done by them both : for
the persons who innocently delivered the vouchers were mere instru-
ments in their hands for that purpose ; the crime of presenting the
vouchers was exclusively their own, as the crime of administering poison
through the medium of a person ignorant of its quality would be the
crime of the person procuring it to be administered.'

In R. V. Taylor (/) Pigott, B., said that if a person in a foreign country
set other persons in motion as his agents, by whom a forged cheque was
prescribed by his procurement in England, this would be an uttering for
which he might be convicted in England.

In R. V. Coombes {g) it was held that the killing of a sailor in a boat by
a shot fired from the shore was cognisable in the Admiralty jurisdiction.
The reasons for the conclusion are not stated, and the opinion of the
judges was that the prisoner was tried by a competent jurisdiction, not
that the common-law Courts would not have had concurrent jurisdiction
to try the offence {h).

It would seem that the above rule is equally applicable where
the post is used by a person abroad for the transmission of letters
containing matter which may be the subject of criminal proceedings (t).

It cannot be said that the authorities above cited show that any com-
plete and effective consideration has been judicially given to the questions
under discussion : but the trend of the decisions supports the statement
in Wharton's Conflict of Laws (2nd ed.) s. 823, that ' the prevailing opinion
in England and the United States is that a person who, when abroad,

(6) This decision has been questioned in (h) The headnote in Leach seems to be

Clarke on Extradition (4th ed.) 263. inaccurate in suggesting that the juris-

(c) This view was not accepted by Cock- diction of the Admiralty was exclusive,
bum, C.J. See R. v. Keyn, 2 Ex. D. 63, 237. Coombes' case was criticised in Badische

(d) i East, 172. Anilin und Soda Fabrik v. Basle Chemical

(e) It was proved that the vouchers were Works [1898], A.C. 200, 204, ante, p. 33
false and had been made on the high seas note (i), and is fully discussed in the
or at Lerwick in the Shetland Isles, opinions of the judges in E. v Keyn,

(/) 4 P. & P. 511, 513. 2 Ex. D. 63, 103, 119, 234.

(g) 1 Leach, 388. (i) R. v. de Marny [1907], 1 K.B. 388.

€HAP. III. j Offences Initiated Outside the Realm. 57

is concerned in directing a crime, may be punished for the same if
arrested (or found) where the crime was committed, although he was
at the time of commission and concoction out of the latter 's jurisdic-
tion'(i), and this view is supported by R. v. Stoddart(&). The indict-
ment inter alia contained charges of obtaining money by false pre-
tences, with reference to a coupon competition. Postal orders and
letters containing money were in consequence of the advertisement of
the competition posted in London addressed to Middelburg in Holland,
it was contended that the obtaining of the money was in Holland and
that there was no jurisdiction to try the charges at the Central Crim-
inal Court. The contention was overruled on the ground that the
offence was complete on the posting of the letters in London (J).

Where an intelligent acting agent is interposed between the for-
eigner initiating the crime and its commission in England, difficulties
may arise as to the jurisdiction of the English Courts over the
foreigner (m).

(/) Cf. s. 18. Wharton inquires (8. templation of law done on the foreign

825 ) , What is the place of commence- schooner where the shot took eflfect, and

ment where a crime is begun in one was not cognisable under the laws of

country to take effect in another, e.g., the U. S. See also State v. Wyckoflf, 2

by sending poison, explosives or libel- Vroom. (N.J.) 69. E.. v. Keyn, 2

lous letters, or using long-range fire- Ex. D. 63, 237, Cockburn, C.J.
arms? See too s. 811 and Wharton (k) [1909] 25 T.L.R. 612: 53 Sol.

Crim. Law (8th ed.) ss. 278-283. 'R.v. Jour. 578.

Johnson, 7 East, 65, ante, p. 53. U. S. (I) The Court relied on R. v. Jones,

V. Davies [1837], 2 Sumner, 482, Story, 1 Den. 551; 19 L.J.M.C. 162 and Archb.

J. This was the case of a gun fired from Cr. PI. (23rd ed.) 609.
an American ship in the habour of (m) See Badische Anilin und Soda

Raiatea by which a person on a native Fabrik v. Basle Chemical Works

schooner in the harbour was killed. [1898], A.C. 200, 205, Halsbury, L.C.
Story, J., held that the act was in con-

(57»)

CANADIAN NOTES.

CRIMINAL JURISDICTION.

Common Law Jurisdiction. — The common law jurisdiction as to
crimes is still operative, notwithstanding the Code, and even in cases
provided for by the Code, unless there is such repugnancy as to give
prevalence to the later law. R. v. Cole, 5 Can. Cr. Cas. 330.

Application of Criminal Law of England. —

(1) To Ontario. Code see. 10.

(2) To British Columbia. Code see. 11.

(3) To Manitoba. Code sec. 12.

(4) To Quebec:—

The Quebec Act, 1774. — The Criminal Law of England was intro-
duced into the Province of Quebec by Royal Proclamation in 1763, and
subsequently extended by 14 Geo. III. eh. 83 (Imp.) to what is now
Ontarip. After the erection of Upper Canada, now Ontario, into a
separate province, the Provincial Legislature, after reciting the Imper-
ial Act, 14 Geo. III. ch. 83, passed 40 Geo. III. ch. 81, in July, 1800,
enacted that the Criminal Law of England as it stood on the 17th
September, 1792, should be the Criminal Law of Upper Canada. R. v.
Malloy (1900), 4 Can. Cr. Cas. 116 (Ont.).

(5) To Nova Scotia, New Brunswick and Prince Edward Island: —
The preamble to the Nova Scotia statute, 33 Geo. II. ch. 3 (1759),

declares ' ' that this Province of Nova Scotia, or Acadia, and the pro-
perty thereof, did always of right belong to the Crown of England,
both in priority of discovery and ancient possession." At that time
Nova Scotia included New Brunswick, but not Cape Breton, but Cape
iBreton was ceded to Great Britain in 1763, and subsequently became a
part of the Province of Nova Scotia. Prince Edward Island was also
ceded to Great Britain in 1763, and annexed to Nova Scotia, but
became a separate province in 1769. All the common law of England
in 1758, unless obviously inconsistent with surrounding circumstances
is in force in the territory which then constituted Nova Scotia. No

CHAP. III.] Offences on Land Outside Canada. 57b

statute law of England in 1758 is in force in the said territory unless
obviously applicable to the circumstances of the territory.
, (6) The North-West Territories:—

The North-West Territories Act, E.S.C. ch. 62, sec. 12, enacts as
follows: "Subject to the provisions of this Act, the laws of England
relating to civil and criminal matters, as the same existed on the 15th
day of July, 1870, shall be in force in the Territories, in so far as the
same are applicable to the Territories, and in so far as the same have
not been, or are not hereafter, as regards the Territories, repealed,
altered, varied, modified or affected by any Act of the Parliament of
the United Kingdom, or of the Parliament of Canada, applicable to the
Territories, or by any ordinance of the Territories. ' '

(7) The Yukon Territory : —

By the Yukon Act, R.S.C. eh. 63, sec. 19, it is provided: "Sub-
ject to the provisions of this Act the laws relating to civil and
criminal matters and the Ordinances in force in the North-West
Territories on the 13th day of June, 1898, shall be and remain in force
in the (Yukon) Territory, in so far as the same are applicable thereto,
and in so far as the same have not been or are not hereafter repealed,
abolished or altered by the Parliament of Canada, or by any ordinance
of the Governor in Council or the Commissioner in Council made under
the provisions of this Act. ' '

Offences on Land Outside Canada. — Issue of warrant by justice.
Code sec. 656. By Code sec. 307, sub-sec. 4, no person shall be liable to
be convicted of bigamy in respect of having gone through a form of
marriage in a place not in Canada, unless such person, being a British
subject resident in Canada, leaves Canada with intent to go through
such form of marriage.

The Parliament of Canada has jurisdiction to constitute the leaving
of Canada by a British subject resident therein, with intent to perform
a prohibitive act, an indictable offence, upon the act itself being per-
formed. Ee Bigamy Sections of the Code (1897) , 1 Can. Cr. Cas. 172 ;
R. V. Brierly, 14 O.K. 525 ; see R. v. Plowman, 25 O.R. 656.

A British subject domiciled in Canada, only temporarily absent,
continues to owe to His Majesty in relation to his government of
Canada an obligation to refrain from the completion, whilst absent
■grithout any animus manendi, of a prohibited act, a material part of
which is done by him in Canada. 1 Can. Cr. Cas. 172.

57c Criminal Jurisdiction. [book i.

General Jurisdiction of Courts Within Province. — Code see. 577.
Offences Committed in One Province are not Triable in Another. —
Code see. 888.

Transitory Offences —

On Water Between Jurisdictions. — Code sec. 584(a).

Begun in One Magisterial Jurisdiction and Completed in Another..
—Code sec. 584(6).

On Mail, Vehicle or Vessel Passing Through Several Jurisdictions,
— Code sec. 584(c).

Section 584, sub-sec. c, of the Code, is practically a reproduction of
section 13 of the Criminal Law Act, 1826 (7 Geo. IV. ch. 54), with the
distinction that the Code includes offences committed " on or in respect,
to mails or a person conveying a post letter bag, post letter, or any-
thing conveyed by post. ' '

Summons or Warrant May Issue. — Code sec. 653.

Where the accused was arrested for an offence alleged to have been_
committed in another province in respect of which a warrant of arrest,
had been there issued and notified by telegram to the Police Depart-
ment at the place of arrest, the accused is not entitled to be discharged
on habeas corpus in respect of the irregularity of his arrest, if the:
original warrant in due form and duly endorsed is returned in answer
to the writ. The King v. Lee Chu, 14 Can. Cr. Cas. 322.

Preliminary Inquiry When Offence Committed Outside of Jurisdic-
tion of Justice. — Code sec. 665.

Whenever the accused has been sent for trial by a magistrate or
justice of the peace before the Court in any district of the same pro-
vince, the Court sitting in such district has jurisdiction to try the-
accused. R. v. Hogle, 5 Can. Cr. Cas. 53. See Code sees. 653 and 665..

The power conferred on a magistrate under section 665 of ordering
the accused person brought before him, charged with an offence com-
mitted out of his territorial jurisdiction (but over which the magistrate
still has jurisdiction because of the arrest of the accused within his
district), to be taken before some justice having jurisdiction in the
place where the offence was committed is permissive only. The Queen.
V. Burke, 5 Can. Cr. Cas. 29.

A magistrate may hold a preliminary inquiry in respect of an
indictable offence committed in the same province outside of his terri-
torial jurisdiction, if the accused is, or is suspected to be, within the

CHAP. III.] Admiralty Jurisdiction. 57 d

limits over which such magistrate has jurisdiction, or resides or is
suspected of residing within such limits. R. v. Burke, 5 Can. Cr. Cas.
29 ; Code see. 653.

The general rule is that the magistrate or justice of the peace has
jurisdiction either by reason of the residence or presence of the accused
in his district, or by reason of the commission of the offence within its
limits. There is, however, an enlargement of this general rule in sec.
653, whereby, when an offence is begun in one magisterial jurisdiction,
and completed within another, such offence may be considered as
having been committed in either of them. R. v. Hogle, 5 Can. Cr. Cas.
53.

Where the offence charged was the making, circulation and publish-
ing of false statements of the financial position of a company, and it
appeared that the statements were mailed from a place in Ontario to
the parties intended to be deceived in Montreal, the offence, although
commenced in Ontario, is completed in the Province of Quebec by the
delivery of the letters to the parties to whom they were addressed. R.
V. Gillespie (No. 2), 2 Can. Cr. Cas. 309.

In such case the Courts of the Province of Quebec have jurisdiction
to try the accused if he has been duly committed for trial by a magis-
trate of the district. Ibid.

The offence of fraudulent conversion of the proceeds of a valuable
security consists of a continuity of acts — the reception of the valuable
security, the collection of the proceeds, the conversion of the proceeds,
and lastly the failure to account for them; and where the beginning
of the operation is in one district, and the continuation and completion
is in another district, the accused may be proceeded against in either
district. R. v. Hogle, 5 Can. Cr. Cas. 53.

Offences Within Jurisdiction of the Admiralty. — Code sec. 591.

A charge against a seaman not a British subject on a British ship
for inciting a revolt upon the ship while on the high seas, cannot if
taken only under Code sec. 138, be made without the consent of the
Governor-General under sec. 591 obtained prior to the laying of the
information. But per Ritchie, J. — If the proceedings for the offence
are taken under the Merchant Shipping Act, 1894 (Imp.), sec. 686,
the consent of the Governor-General is not required, and Code sec. 591
would not apply. Per Weatherbe, J. — Code sec. 591 applies to the
procedure in Canadian Courts in respect of offences committed within

57e ^ Criminal Jurisdiction. [booic i.

the Admiralty jurisdiction whether the proceedings are taken under
the Criminal Code or the Imperial Merchant Shipping Act or the
Admiralty Offence Act, 1849 (Imp.). The King v. Heckman, 5 Can.
Cr. Gas. 242 (N.S.).

A foreign seaman on a British ship cannot be summarily convicted
for insubordination under the Canada Shipping Act, R.S.C. (1906)
ch. 113, sec. 287, unless leave to lay the information has been granted
by the Governor-General under sec. 591 of the Code. R. v. Adolph
(1907), 12 Can. Cr. Cas. 413.

Under the Imperial statutes, 12-13 Vict. ch. 96, and the Merchant
Shipping Act, 1894, sec. 686, any offence committed upon the sea or
within the jurisdiction of the Admiralty, shall, in any British colony
where the person is charged with the offence or brought there for trial,
be dealt with as if it had been committed within the limits of the local
jurisdiction of the Courts of criminal jurisdiction of suCh colony ; and
if any person dies in any colony in consequence of having been
feloniously hurt or poisoned upon the sea, or within the limits of the
Admiralty, or at any place out of the colony, the offence may be dealt
with in such colony as if it had been wholly committed there.

A sea harbour enclosed within headlands such as the harbour of
Halifax, is within the body of the adjacent county, and criminal
offences committed iji such harbour even upon foreign ships are not
within the jurisdiction of the Admiralty except in the special cases pro-
vided by statute. R. v. Schwab (1907), 12 Can. Cr. Cas. 539 (N.S.).

A charge of theft by foreigners upon and from a foreign ship while
lying in a harbour forming part of the body of the county may be pro-
secuted in the county without obtaining the leave of the Governor-
General under sec. 591 of the Code. Ibid.

A preliminary inquiry may be begun in respect of an indictable
offence committed by a foreigner on a British ship within the three mile
limit without first obtaining the leave of the Governor-General under
Code sec. 591 and the accused may be remanded for the purpose of
obtaining the leave of the Governor-General for the trial and punish-
ment of the accused.

The Territorial Waters Jurisdiction Act, 1878 (Imp.), from which
Code see. 591 is derived, applies, and the phrase "proceedings for the
trial of the offence ' ' used in Code sec. 591 must be construed in accord-
ance to the statutory limitation which section 4 of the Imperial statute
provides. The King v. Tano, 14 Can. Cr. Cas. 440.

CHAP. III.] Special Jurisdiction. 57 f

The great lakes at the boundary of the Province of Ontario are
within the jurisdiction of the Admiralty. R. v. Sharp, 5 P.R.
(Oit.) 135.

Disclosing Official Secrets. — Code sec. 592.

Judicial Corruption. — Code sec. 593.

Making Explosive Substances. — Code sec. 594.

Sending Vnseaworthy Ships to Sea. — Code sec. 595.

Criminal Breach of Trust. — Code sec. 596. •

Fraudulent Acts of Vendor or Mortgagor. — Code sec. 597.

Uttering Defaced Coin. — Code sec. 598.

Offences in Unorganized Territory. — Code sees. 585, 586, 587, 588.

(58)

CHAPTER THE FOURTH.

OF CRIMINAL RESPONSIBILITY.

It is a general rule that no person is excused from punishment for dis-
obedience to the laws of England, unless he is expressly exempted by-
law (a). The several pleas and excuses which may be urged on behalf
of a person who has committed a forbidden act, as grounds of exemp-
tion from punishment, are now usually described as general exceptions,
as being implied in the definition of every crime unless the contrary
is expressed(&).

It is the general practice of the legislature to leave unexpressed some
of the mental elements of crime. In all cases whatever, competent age,
sanity, and some degree of freedom from some kind of coercion are
assumed to be essential to criminality, but I do not believe that they
are ever introduced into any statute by which ,any particular crime is
defined (c). This principle was early expressed by laying down that a
statute making a new felony did not extend to an infant under the age
of discretion or to a lunatic (d). ,

The four general exceptions now recognised are —

I. Infancy. II. Unsoundness of mind. III. Subjection to the
power of others. IV. Ignorance and mistake of fact.

I. Infancy. — The full age of man or woman by the law of England
is twenty-one years (e).

Tinder seven. — Under the law of England (/) a child under seven
years of age cannot be guilty of any criminal offence, whatever evi-
dence may be available of his possessing a mischievous discretion ; for
ex prcesumptione juris he 'has not discretion and understanding '(gr) ;
and the presumption cannot be rebutted (/i). In consequence of this
rule it has been held illegal to arrest a child under seven found stealing
wood(i).

(o) 1 Bl. Com. 20. Cf. 1 Hale, 14. the party was not presumed to be doU

(b) Steph. Dig. Cr. L. (6th ed.) p. capax. 4. Infantia, whiph lasts till
20. 2 Steph. Hist. Cr. L. cc. xviii., xix. seven years, within which age there

(d) Byston v. Studd, Plowd. 459a, , (g) Reniger v. Fogossa, 1 Plowd. 1,
465. See 1 Hale, 21, 22. Bac. Abr. Inf. 19. The rule is recognised by ss. 10, 11
(H. ). of the Summary Jurisdiction Act, 1879

(e) See Co. Litt. ss. 104, 259. ■ (42 & 43 Vict. c. 49), as amended in
(/) The civil law, as to capital pun- 1908 (8 Edw. VII. c. 67), s. 128, which

ishments, distinguished the ages into provides for the summary trial of chil-
four ranks: 1. ^tas pubertatis plena, dren from seven to fourteen years for
which is eighteen years. 2. 2Etas puher- any indictable offence except homicide.
tatis, or puhertas generally, which is (/i) 1 Hale, 27, 28. 1 Hawk. c. 1,
fourteen to eighteen years, at which s. 1, n. (1). 4 Bl. Com. 23. For a par-
time persons were likewise presumed to don for homicide granted to a child
be doli . capaces. 3. JStas pubertati found to have been under seven at the
proxima; from ten and a half (or, ac- date of the homicide, see 1 Hale, 27
cording to some, eleven) to fourteen, (ed. 1800), note (e).
during which period the capacitas doli (i) Marsh v. Loader, 14 C.B. (N.S.)
was in the arbitrium, of the judge, but 535.

CHAP. IV.] Effect of Infancy. 59

Between seven and fourteen. — A child of seven and under fourteen
is presumed to be incapable of criminal intent {doli incapax) ; but the
presumption may be rebutted, and weakens with the advance of the child's
years towards fourteen, and the particular facts and circumstances
attending the doing of the act and manifesting the extent of the under-
standing and disposition of the child. The evidence of criminal capacity
which is allowed to displace the presumption (expressed in the phrase
malitia supplet aetatem) should be strong and clear beyond all doubt and
contradiction (j). It is said that in the case of capital crime the law was
minute and circumspect, distinguishing with nicety the several degrees of
age and discretion, though criminal responsibility depends not so much
on years and days as on the delinquent's understanding and judgment (k).
There are numerous cases in and before the eighteenth century in which
the liability of children under fourteen to conviction and execution for
capital felony has been solemnly discussed, and it was laid down that if it
appeared to the Court and jury that the child was doli capax he might
be convicted and suffer death (I). Under the Children Act, 1908 (8 Edw.
VII. c. 67, s. 103) sentence of death cannot be passed on or recorded
against a person under sixteen ; but such children are now rarely if ever
put on trial in respect of any of the few felonies which are still capital,
although they cannot be summarily tried for homicide (m).

Whenever a person under the age of fourteen is indicted for felony,
the proper course is to leave the case to the jury to say whether, at the
time of committing the offence, such person had guilty knowledge that
he was doing wrong (n). And in a recent case it has been ruled that the
mere fact that the child did the acts imputed to him as an offence is not
in itself enough to rebut the presumption against criminal responsibility
arising from his tender years (o). The presumption against capacity is
now applied equally to felony and misdemeanor.

(;) E. V. Vamplew, 3 F. & F. 520. wanting discretion be indicted and found

(h) 4 Bl. Com. 23. guilty of felony the justices themselves

(l) 1 Hale, 25, 27. 4 Bl. Com. 32. See may dismiss him without a pardon (Y. B.

Dean's case, 1 Hale, 25, note (a) : execution 35Hen.VI.ll&12); but that this authority

of a child between eight and nine for burn- must be understood of a reprieve before

ing two barns ; sentence to death (respited) judgment ; or of a case where the jury

of a child of nine for murder. 1 Hale, 27 find the prisoner within the age of seven

(see Fitz. Rep. Corone, 57 ; B. Corone, 133 ; years, or not of sufficient discretion to

Dalt. c. 147) : and conviction and execution judge between good and evil. 1 Hale, 27.

of a child of ten (Spigurnal's case : 1 Hale, 1 Hawk. c. 1, s. 8. They also raise a query

26 ; Fitz. Rep. Corone, 118) and a girl of whether in any case of an infant convicted

thirteen (Alice de Waldeborough's case : 1 by a jury, the judge would take upon him-

Hale, 26) : in each case for murder. The self to dismiss him. It is submitted that

fullest discussion of the rules applied in the the regular course would be to respite

eighteenth century is in York's case [1748], execution, and recommend the prisoner for

Fost. 70, an indictment of a boy of ten for a pardon. Except in case of conviction of

murdering a girl of five. The boy was sen- murder, these statements are of no present

tertced to death and respited until 1757, when value : the Courts being free in non-capital

he was pardoned on condition of entering cases to bind the prisoner to come up for

the navy. Cf. R. v. Wild, 1 Mood. 452. judgmentor put him on probation (^J^c^eJ)o«^

(to) 42 & 43 Vict. 0. 49, s. 10 : 52 and p. 227).
53 Vict. u. 22, s. 2: 8 Edw. VII. c. 67, (o) R. v. Kershaw, 18 T. L. R. 357,

s. 128 (1). Bucknill, J. In R. v. Carvery [1906], 11

(») R. V. Owen, 4 C. & P. 236, Littledale, Canada Cr. Cas. 331, it was held that a

J. R. V. Smith, 1 Cox, 260, Erie, J. For- charge of misdemeanor (perjury) against ar

mer editions of this work contain the boy of ten could not be sustained at common

statement that if an infant apparently law unless he was conscious of the nature of

Of Criminal Responsibility.

[BOOK I.

The law presumes that a male under fourteen cannot be guilty of
rape (p) ; nor of an assault with intent to commit rape {q), nor of carnally
knowing a girl under thirteen years of age (r). But, on an indictment
for this ofience, he may be convicted of indecent assault (s), an offence
which may be committed by persons of either sex (ss). This presumption
is absolute, and evidence is not admissible to prove that the infant is in
fact physically capable of committing any such offence (t). But this
presuinption is upon the ground of impotency rather than want of dis-
cretion ; for he may be a principal in the second degree, as aiding and
assisting in rape as well as in other felonies, if it appears by sufficient
circumstances that he had a mischievous discretion (m).

Fourteen and over. — An infant of fourteen years and over is pre-
sumed to be doli capax, and at common law was regarded as liable to
capital punishment as much as a person of full age (v), and a statute
declaring acts to be treason or felony extends to infants above fourteen.
But they were said to be exempt from punishment in the case of some
misdemeanors and non-capital offences (w). The distinctions drawn
between the two classes of offence were probably based on a tendency
to confuse between the criminal and civil aspects of misdemeanor, and
it was recognised that in the case of any notorious breach of the peace,
as a riot, battery, or the like, an infant above the age of fourteen is equally
responsible as a person of full age (x).

An infant capable of taking the witnesses' oath is punishable for

his oonduot,and was capable of appreciating
that it was wrong. No evidence was
given to shew the extent of the boy's
inteUigence, and the Court declined to
presume from the mere commission of the
act that the boy knew he was doing wrong.
It has been suggested that a plea of guilty
should not be accepted in the case of a child
under fourteen, and that the Ciourt or jury
should require evidence of criminal cap-
acity before convicting such a child. See
43 L. J. (newsp.) 688.

(p) R. V. Groombridge, 7 C. & P. 582.
Gaselee, J., after consulting Abinger, C.B.,
as to whether the words ' every person '
in 9 Geo. IV. c. 31, s. 16, altered the former
law.

(q) R. V. Eldershaw, 3 C. & P. 396,
Vaughan, J. R. v. Philips, 8 C. & P. 736,
Patteson, J.

(r) R. V. Jordan, 9 C. & P. 118, Wil-
liams, J. R. V. Waite [1892], 2 Q.B.
600.

(s) R. V. Williams [1893], 1 Q.B. 320. In
that case there were conflicting dicta as to
the liability of a boy under fourteen to
conviction for attempting to commit rape.
See R. V. Angus, infra.

{ss) See R. v. Angus [1907], 24 N. Z. L. R.
948, and post, p. 955.

(t) R. V. Philips, and R. v. Jordan,
supra.

(u) 1 Hale, 630. R. v. Eldershaw, ubi
supra. R. v. Allen, 18 L. J. M. C. 72.

{v) Dr. & Stu. 0, 26, Co. Lit. 79, 171,

247. Dalt. 476, 505. 1 Hale, 25. Bac.
Abr. Inf. (A. & H).

{w) In 1 Jac. I. c. 11, as to bigamy (rep.
9 Geo. IV. c. 31, s. 1, and now represented
by 24 & 25 Vict. c. 100, s. 57) there
was a special exception of marriages
within the age of consent ; so that if the
marriage were above the age of consent,
though within the age of twenty-one years,
it was not exempted from the penalty. So
by 21 Hen. VIII, c. 7 (rep. 7 & 8 Geo. IV.
c. 27), concerning felony by servants em-
bezzling their masters' goods delivered to
them, there was a special provision that it
should not extend to servants under the
age of eighteen years, who certainly would
have been within the penalty, if above
fourteen though under eighteen, unless
there had been a special provision to ex-
clude them. And so by 12 Ann. c. 7 (rep.
7 & 8 Geo. IV. c. 27), which made it felony
without benefit of clergy to steal goods to
the value of 405. out of a house, though the
house were not broken open, apprentices
who should rob their masters were especi-
ally excepted (see Bac. Abr. Inf. (H.). Co.
Lit. 147. 1 Hale, 20, 21, 22).

{x) See 4 Bl. Com. 23. 1 Hale, 20. Co.
Lit. 247b, And as to riot, 1 Hawk. c. 65,
s. 14. It is said that it was the course of
the Crown Office for an infant to appear
in the King's Bench by attorney and not by
guardian. R. v. Tanner, 2 Ld. Ravm.
1284. '

CHAR IV.] Effect of Infancy. 61

perjury {y), and an infant may be indicted for cheating with false dice (2),
or for larceny as a bailee, since bailment is not a contract but a delivery
upon condition (a). An infant is not Hable to indictment as a bankrupt
for offence within the Debtors Act, 1869, as extended by the Bankruptcy
Acts, 1883 and 1890, because he cannot be adjudicated bankrupt (6),
but there seems to be no legal objection to his conviction for aiding and
abetting an adult bankrupt to commit such offences (c).

In the following cases the criminal liability of an infant between
fourteen and twenty-one is said to be qualified. It was said that general
statutes imposing corporal punishment did not extend to infants : and
on this reasoning it was held that an infant could not be imprisoned for
ravishment of ward, notwithstanding the generality of the terms of the
Statute of Merton (20 Hen. III. c. 6) {d). But this, if in any sense true,
must be limited to cases in which the punishment is collateral to the
offence, and not the direct object of the proceeding against the infant (e).

It is said that if an infant of the age of eighteen years be convicted
of a disseisin with force, yet he shall not be imprisoned (/) ; and that
though an infant at the age of eighteen or even fourteen, by his own acts
may be guilty of a forcible entry, and may be fined for the same, yet he
cannot be imprisoned, because his infancy is an excuse by reason of his
indiscretion ; and it is not particularly mentioned in the statute against
forcible entries, that he shall be committed for such fine {g). It is also
said that an infant cannot be guilty of a forcible entry or disseisin by
barely commanding one or by assenting to one to his use ; because every
command or assent of this kind by a person under such incapacity is void ;
but an actual entry by an infant into another's freehold gains the
possession and makes him a disseisor Qi).

It is also said that if the offence charged against the infant be a mere
non-feasance (unless it be of such a thing as the party is bound to by
reason of tenure or the like, as to repair a bridge, &c. {i), an infant is
privileged by reason of his infancy ; because laches in such a case is not
imputable to him {j).

It is doubtful whether these authorities would now be followed, except
where the contractual incapacity of the infant had a direct bearing on
the offence with which he was charged. Eecent legislation for purposes
of punishment and reform, as distinct from legal responsibility, classifies
infants from fourteen to sixteen separately from those between sixteen
and twenty- three, and separates both from adults (k).

(y) But see ante, p. 60, note (o). The Lit. 357. And see 1 Hawk. u. 64, s. 35,

rule has been extended by recent legislation that the infant ought not to be imprisoned

to children of tender years allowed to give because he shall not be subject to corporal

evidence without oath. Vide post, Bk. punishment by force of the general words of

xiii. c. V. any statute wherein he is not expressly

{z) Bao. Abr. Inf. (H.). Sid. 258. named.

(a) R. V. Maodonald, 15 Q.B.D. 323. (A) Bac. Abr. Inf. (H.). Co. Lit. 357. 1

(6) R. V. Wilson, 6 Q.B.D. 28. Cf. Hawk. c. 64, s. 35.
Lovell V. Beauohamp [1894], A.C. 607. (») 2 Co. Inst. 703. R. v. Sutton, 3 A.

(d) Bac. Abr. Infancy, (H.). 1 Hale, 21. are now of a civil and not of a criminal
Eyston v. Studd, 1 Plowd. 465a. . character. See 7 Ed. VII. o. 23, s. 20 (3).

(e) Bac. Abr. tit. Inf. (H.). 1 Hale, 21. 8 Ed. VII. o. 15, b. 9 (3).

(/) 1 Hale, 21. (?) 1 Hale, 20. Bao. Abr. Infant (H.).

(y) Bao. Abr. Inf. (H.). Dalt. 422. Co. (k) Vide post, v- 230.

62 Of Criminal Responsibility. [BOOK i.

II. Unsoundness of Mind. — All persons who tave reached the age of
discretion (14 years) are presumed to be sane, and criminally respon-
sible (l), and in cases where a person subject to attacks of insanity (m) has
lucid intervals, the law presumes the offence of such person to have
been committed in a lucid interval, unless it appears to have been com-
mitted in the time of his distemper (n). It lies on the accused to prove
that he was insane at the time of the commission of an ofEence (o), so as
not to be Hable to punishment as a sane person. The jury may draw
the inference of insanity from direct evidence, or from the appearance
and conduct of the accused at his arraignment or trial.

It has been considered, that there are four kinds of persons who may
be said to be non compotes mentes : — 1. An idiot. 2. One made non compos
by illness. 3. A lunatic. 4. One who is drunk (p).

Idiocy is congenital imbecility or unsoundness of mind (q), (without
lucid intervals) (r). A person is deemed an idiot who cannot count
twenty, tell the days of the week, does not know his father or mother,
his own age, &c. : but these are mentioned as instances only ; for whether
idiot or not is a question of fact for the jury (s). A person deaf and
dumb from birth is in presumption of law an idiot ; but if it appears
that he has the use of understanding he is criminally responsible, and
may be tried and convicted, though great caution should be used in
such a proceeding (t). This form of mental incapacity has been described
as dementia naturalis. The difficulty in cases of deaf and dumb persons
accused of crime is oftener as to their capacity to plead and understand
the proceedings at their trial than their mental incapacity (u).

Mental incapacity arising from post natal causes, such as illness

{I) Macnaughton's case, 4 St. Tr. (N. S.) understanding, much more may one who

931, post, p. 67. R. V. Stokes, 3 C. & K. 185. is only dumb, and consequently such a one

post, p. 71. R. V. Layton, 4 Cox, 149, may be guilty of felony.' Fromthehumane

post, p. 78. exertions of many ingenious persons, and

(m) 1 Hale, 33, 34. R. v. Oxford [1840], from the charitable institutions for the

4 St. Tr. (N. S.) 497 ; 9 C. & P. 525. instruction of deaf mutes, many of them

(«) 1 Hale 33, 34. have at the present day a very perfect

(o) The practice at the Central Criminal knowledge of right and wrong. In R. v.

Court, approved in R. v. de Vere [1909], 2 Steel, 1 Leach, 451, » prisoner, who could

Cr. App. R. 19, is for the defence to call the not hear, and could not be prevailed upon

prison doctor or other witnesses. As to to plead, was found mute by the visitation

procedure in Scotland see Brown's case, of God, and then tried, found guilty, and

[1907], 9 Fraser (Just.) 67. As to Canada sentenced to be transported,
see Re Duelos, 12 Canada Cr. Cas. 478. (a) In R. v. Jones, 1 Leach, 102, where

(p) Co. Litt. 247. Beverley's case, 4 Co. the prisoner (who was indicted on 12 Ann.

Rep. 124, post, p. 87. c. 7, for stealing in a dwelling-house), on

(}) Dementia naturalis, vel fatuitas a being put to the bar appeared to be deaf

nativitate. and dumb, and the jury found a verdict,

(r) Post, p. 63. ' Mute by the visitation of God ; ' after

(s) Bac. Abr. Idiots, &o. (A). Dy. 25, which a woman was examined upon her

Moore (K.B.), 4, pi. 12. Bro. Idiot, 1. oath, to the fact of her bemg able to make

F. N. B. 233. him understand what others said, which

(t) 1 Hale, 34 and note, where it is said she said she could do by means of signs,

that ' according to 43 Assis. pi. 30, and such prisoner was arraigned, tried, and

T. B. 8 Hen. IV. 2, if a prisoner stands mute, convicted of the simple larceny. In R. v.

it shall be inquired whether it be wilful, or Berry, 1 Q.B.D. 447, a deaf mute on trial for

by the act of God ; whence Crompton felony was found by the jury not to have

infers that if it be by the act of God, the understood the prooeediugs at the trial, and

party shall not suffer, Crompt. Just. 29, a. to be unable to understand them. This was

But if one who is both deaf and dumb can held equivalent to a verdict of insanity,

show by signs that he has the use of his As to present procedure, vide post, p. 82.

CHAP. IV.] Effect of Insanity. 63

(fever or palsy), or accident, injury, or shock to the brain, makes the
person suffering from it not criminally responsible for acts done by him
while it continues, is described by the older writers as dementia accidentalis
vel adventitia, and is separately regarded as total or partial, or temporary {v )
or permanent. They describe as lunatics persons afflicted by mental
disorder only at certain periods and vicissitudes ; having intervals of
reason. Such persons during their frenzy are criminally as irresponsible
as those whose disorder is fixed and permanent (iv).

The great difficulty in cases of this kind is to determine whether a
person is so far deprived of sound memory and understanding as not
to be responsible for his actions ; or whether, notwithstanding some
defects of this kind, he still appears to have so much reason and under-
standing as will make him accountable for his actions. Hale says
that partial insanity is the condition of very many, especially melancholy
persons, who for the most part discover their defect in excessive fears
and griefs, and yet are not wholly destitute of the use of reason ; and
that this partial insanity seems not to excuse them in the committing
of any capital offence. And further, ' Doubtless most persons that
are felons of themselves and others are under a degree of partial insanity
when they commit these offences : it is very difficult to define the invisible
line that divides perfect and partial insanity ; but it must rest upon
circumstances duly to be weighed and considered both by the judge
and jury, lest on the one side there be a kind of inhumanity towards
the defects of human nature, or, on the other side, too great an indul-
gence given to great crimes.' He concludes, ' the best measure I can
think of is this : such a person as, labouring under melancholy distempers,
hath yet ordinarily as great understanding as ordinarily a child of four-
teen years hath, is such a person as may be guilty of treason or felony (x).

On the trial of Earl Ferrers in 1760 for murder (y), it was proved
that he was occasionally insane, and incapable from his insanity of
knowing what he did, or judging of the consequences of his actions.
But the murder was deliberate ; and it appeared that when he com-
mitted the crime he had capacity sufficient to form a design and know
its consequences. It was urged, on the part of the prosecution, that
complete possession of reason was unnecessary to warrant the judgment
of the law, and that it was sufficient if the party had such possession
of reason as enabled him to comprehend the nature of his actions, and
discriminate between moral good and evil. And he was found guilty
and executed.

In Arnold's case (a), a trial in 1724, for maHciously shooting, it
appeared clearly that the prisoner was, to a certain extent, deranged,
and that he had greatly misconceived the conduct of Lord Onslow ;
but it also appeared that he had formed a regular design, and prepared
the proper means for carrying it into effect. Tracey, J., told the jury,

(«) See R. V. Baines [1886], Kenny Cr. {x) 1 Hale, 30.
Law, p. 61, cit. The dictum of Darling, J. (y) 19 St. Tr. 886, 947. See Wood Ren-
in R. V. Harding [1909], 1 Cr. App. R. 223 ton on Lunacy, 886.
seems incorrect. (a) MS. CoUinson, Lunacy, 475 : 16 St.

{w) Beverley's case, 4 Co. Rep. 125. Co. Tr. 764, 765. The jury found the prisoner

Litt. 247. 1 Hale, 31. Bac. Abr. Idiots, guilty ; but at Lord Onslow's request he

&c. (A). was reprieved.

64 Of Criminal Responsibility. [book I.

that where a person has committed a great offence, the exemption of
insanity must be very clearly made out before it is allowed ; that it is
not every kind of idle and frantic humour of a man, or something un-
accountable in his actions, which will show him to be such a madman
as is to be exempted from punishment; but that where a man is
totally deprived of his understanding and memory, and does not know
what he is doing, any more than an infant, or a wild beast, he will
properly be exempted from the punishment of the law.

In Parker's case (b), who was tried in 1812, for aiding the King's
enemies, by entering into the French service in time of war between
France and this country, the defence was rested upon the ground of
insanity ; and a witness on his behalf stated, that his general character
from a child was that of a person of very weak intellect ; so weak that
it excited surprise in the neighbourhood when he was accepted for a
soldier. But the evidence for the prosecution had shown the act to
have been done with considerable deliberation and possession of reason ;
and that the prisoner, who was a marine, having been captured by the
French, after a confinement of about six weeks entered voluntarily into
the French service, and stated to a captive comrade that it was much
more agreeable to be at liberty and have plenty of money than remain
confined in a dungeon. The Attorney-General replied to this defence
of insanity, that before it could have any weight in rebutting a charge
so clearly made out, the jury must be properly satisfied that at the
time when the crime was committed the prisoner did not really know
right from wrong.

T. Bowler (c) was tried on July 2, 1812, for wounding W. B. The
defence set up for the prisoner was insanity, occasioned by epilepsy ;
and it was deposed by the prisoner's housekeeper, that he was seized
with an epileptic fit on July 9, 1811, and was brought home apparently
lifeless, since which time she had perceived a great alteration in his
conduct and demeanor ; that he would frequently rise at nine o'clock
in the morning, eat his meat almost raw, and lie on the grass exposed
to the rain ; and that his spirits were so dejected that it was necessary
to watch him, lest he should destroy himself. The keeper of a lunatic
asylum deposed, that it was characteristic of insanity occasioned by
epilepsy for the patient to imbibe violent antipathies against particular
individuals, even his dearest friends, and to have a desire of taking
vengeance upon them upon causes wholly imaginary, which no persuasion
could remove, and that yet the patient might be rational and collected
upon every other subject. He had no doubt of the insanity of the
prisoner, and said he could not be deceived by assumed appearances.
A commission of lunacy was also produced, dated June 17, 1812, and
an inquisition taken upon it, whereby the prisoner was found insane,
and to have been so from March 30. Le Blanc, J., told the jury,
that it was for them to determine whether the prisoner, when he
committed the offence with which he stood charged, was incapable of

(b) 1 Collinson, Lun. 477. Shelf. Lun. The report in CoUinson does not state the
590. The jury returned a verdict of guilty. day on which the prisoner shot at W.

CHAP. IV.] Criteria of Insanity. 65

distinguishing right from wrong, or under the influence of any illusion
in respect of the prosecutor which rendered his mind at the moment
insensible of the nature of the act he was about to commit ; since in that
case he would not be legally responsible for his conduct. On the other
hand, provided they should be of opinion that when he committed
the offence he was capable of distinguishing right from wrong, and not
under the influence of such an illusion as disabled him from discerning
that he was doing a wrong act, he would be amenable to the justice of
his country, and guilty in the eye of the law. The jury, after considerable
deliberation, pronounced the prisoner guilty (d).

In Bellingham's case (e), who was tried in 1812 for the murder of Mr.
Spenc r Perceval, a part of the prisoner's defence was insanity. On
this part of the case. Sir James Mansfield, C.J., stated to the jury,
that in order to support such a defence it ought to be proved by the most
distinct and unquestionable evidence that the prisoner was incapable of
judging between right and wrong ; that in fact it must be proved beyond
all doubt, that at the time he committed the atrocious act with which he
stood charged, he did not consider that murder was a crime against the
laws of God and nature ; and that there was no other proof of insanity
which would excuse murder, or any other crime. That in the species
of madness called lunacy, where persons are subject to temporary
paroxysms, in which they are guilty of acts of extravagance, such persons
committing crimes when they are not affected by the malady would be,
to all intents and purposes, amenable to justice; and that so long as they
could distinguish good from evil they would be answerable for their conduct.
And that in the species of insanity in which the patient fancies the
existence of injury, and seeks an opportunity of gratifying revenge by
some hostile act, if such a person be capable in other respects of dis-
tinguishing right from wrong, there would be no excuse for any act of
atrocity which he might commit under this description of derangement.

In R. V. Ofiord (f), on an indictment for murder, it appeared that
the prisoner laboured under a notion that the inhabitants of H., and
particularly the deceased, were continually issuing warrants against
him with intent to deprive him of his liberty and life. Lord Lyndhurst,
C.B., told the jury that ' they must be satisfied, before they could acquit
the prisoner on the ground of insanity, that he did not know, when he
committed the act, what the effect of it, if fatal, would be, with reference
to the crime of murder. The question was, did he know that he was
committing an offence against the laws of God and nature ? ' and ex-
pressed his complete agreement with the observations of Sir James
Mansfield in the last case.

On the trial of Oxford, in 1840, for shooting at Queen Victoria, Lord
Denman, C.J., told the jury, ' Persons prima facie must be taken to be of
sound mind till the contrary is shewn. But a person may commit a
criminal act, and not be responsible. If some controlling disease was,

{d) See 4 St. Tr. (N. S.) 508. was conducted.' Per Campbell, Att.-Gen.

(e) Old Bailey, May 15, 1812. Times, May in R. v. Oxford, 9 C. & P. 553 ; 4 St. Tr.

16 : CoUinson Addend. 636. ' I will not refer (N. S.) 497, 508.
to Bellingham's case, as there are some (/) [1831] 5 C. & P. 168.

doubts as to the mode in vvhich that case

VOL. I. F

66 Of Criminal Resfonsihility. [book i.

in truth, the acting power within him which he could not resist, then
he will not be responsible. It is not more important than difficult to
lay down the rule by which you are to be governed.' . . . 'On the part of
the defence, it is contended that the prisoner was non compos mentis,
that is (as it has been said) unable to distinguish right from wrong,
or, in other words, that from the effect of a diseased mind he did not
know at the time that the act he did was wrong.' . . . 'Something has
been said about the power to contract and to make a will ; but I think
that those things do not supply any test. The question is, whether the
prisoner was labouring under that species of insanity which satisfies
you that he was quite unaware of the nature, character, and consequences
of the act he was committing, or, in other words, whether he was under
the influence of a diseased mind, and was really unconscious at the time
he was committing the act that it was a crime ? ' {(j)

J. Hadfield was tried in the Court of King's Bench, in 1800 (h), for high
treason, in shooting at King George III., and the defence was insanity.
He had been a soldier and received many severe wounds in battle, which
had caused partial derangement of mind, and had been dismissed from
the army on account of insanity. Since his return to this country he
had been annually out of his mind from the beginning of spring to the
end of the dog-days, and had been under confinement as a lunatic. When
affected by his disorder, he imagined himself to hold intercourse with
God ; sometimes called himself God, or Jesus Christ, and used other
expressions of the most blasphemous kind ; and also committed acts
of the greatest extravagance ; but at other times he appeared to be
rational, and discovered no symptom of mental incapacity or disorder.
On May 11, 1800, preceding his commission of the act in question,
his mind was very much disordered, and he used many blasphemous
expressions. At one or two o'clock on the following morning, he suddenly
jumped out of bed, and alluding to his child, a boy of eight months
old, of whom he was usually remarkably fond, said he was about to
dash his brains out against the bedpost, and that God had ordered him
to do so ; and upon his wife screaming, and his friends coming in, he ran
into a cupboard and declared he would lie there, it should be his bed,
and God bad said so ; and when doing this, having overset some water,
he said he had lost a great deal of blood. On the same and the following
day he used many incoherent and blasphemous expressions. On the
morning of May l5 he seemed worse, said that he had seen God in
the night, that the coach was waiting, and that he had been to dine with
the King. He spoke very highly of the King, the royal family, and
particularly of the Duke of York. He then went to his master's work-
shop, whence he returned to dinner at two, but said that he stood in
no need of meat, and could live without it. He asked for tea between
three and four o'clock, and talked of being made a member of the society
of Odd Fellows ; and, after repeating his irreligious expressions, went
out and repaired to the theatre. On the part of the Crown, it was proved
that he had sat in his place in the theatre nearly three-quarters of an

(sr) 9 C. & P. 525 ; 4 St. Tr. (N. S.) 497, {h) 27 St. Tr. 1281 : 1 CoUinson, Lunacy,

Denman, O.J., Alderson, B., and Patte- 480.
son, J.

CHAP. IV.] Insanity — Macnaughton's Case. 67

hour before the King entered ; that at the moment when the audience
rose, on His Majesty's entering his box, he got up above the rest,
and, taking deliberate aim, presented a pistol loaded with slugs, fired it
at the King's person, and then let it drop ; and when he fired his situation
appeared favourable for taking aim, for he was standing upon the second
seat from the orchestra in the pit ; and he took a deliberate aim, by looking
down the barrel, as a man usually does when taking aim. On his appre-
hension, amongst other expressions, he said that ' he knew perfectly
well his life was forfeited ; that he was tired of life, and regretted nothing
but the fate of a woman who was his wife, and would be his wife a few
days longer, he supposed.' These words he spoke calmly, and without
any apparent derangement ; and with equal calmness repeated that he
was tired of life, and said that ' his plan was to get rid of it by other
means ; he did not intend anything against the life of the King ; he knew
the attempt only would answer his purpose.' Erskine (i) for the prisoner
put the case to the jury as one of a species of insanity in the nature of
a morbid delusion of the intellect, and admitted that it was necessary
for them to be satisfied that the act in question was the immediate
unqualified offspring of the disease. And Kenyon, C.J., ruled that as
the prisoner was deranged immediately before the offence was committed,
it was impossible that he had recovered his senses in the interim ; and
although, were they to run into nicety, proof might be demanded of
his insanity at the precise moment when the act was committed ; yet,
there being no reason for believing him to have been at that period
a rational and accountable being, he ought to be acquitted (/).

On an indictment of Daniel Macnaughton, in 1843, for the murder
of D., the defence was insanity, and the medical evidence was that persons
of otherwise sound mind might be affected with morbid delusions ; that
the prisoner was in that condition ; that a person labouring under a
morbid delusion might have a moral perception of right and wrong ;
but that, in the case of the prisoner, it was a delusion which carried
him away beyond the power of his own control, and left him no such
perception ; and that he was not capable of exercising any control
over acts which had a connection with his delusion ; that it was the nature
of his disease to go on gradually until it had reached a climax, when it
burst forth with irresistible intensity ; that a man might go on for years
quietly, though at the same time under its influence, but would at once
break out into the most violent paroxysms. Tindal, C. J., said to the jury,
' The point I shall have to submit to you is whether on the whole of the
evidence you have heard, you are satisfied that at the time the act for
the commission of which the prisoner now stands charged he had that
competent use of his understanding as that he knew that he was doing,
by the very act itself, a wicked and a wrong thing. If he was not sensible
at the time he committed that act, that it was a violation of the law of
God and man (k), undoubtedly he is not responsible for that act, or
liable to any punishment whatever flowing from it.' . . . 'If upon

{i) Later Lord Chancellor Erskine. (k) Qumre, whether this position was not

(j) The accused was acquitted on the toofavourablefor the prisoner, as it required
ground of insanity. See 39 & 40 Geo. III. the jury to be satisfied that the prisoner was
c 94 yost p. 84. aware both of the laws of God and man ?

F 2

68 Of Criminal, Resfonsibility. lbook i,

balancing the evidence in your minds you should think the prisoner
a person capable of distinguishing right from wrong with respect to the
act with which he stands charged (Z). he is then a responsible agent
and liable to the penalties imposed upon those who commit the crime of
which he is accused' (m).

Macnaughton was acquitted on the ground of insanity, and his acquittal
gave rise to a discussion in the House of Lords, and the following questions
were put to the judges (n), and answered by them all, except Maule, J.,
as follows, in June, 1843 : —

Q. I. ' What is the law respecting alleged crimes committed by
persons afflicted with insane delusion in respect of one or more par-
ticular subjects or persons ; as, for instance, where, at the time of the
commission of the alleged crime, the accused knew he was acting contrary
to law, but did the act complained of with a view, under the influence
of insane delusion, of redressing or revenging some supposed grievance
or injury, or of producing some supposed public benefit ? '

A. I. ' Assuming that your lordships' inquiries are confined to
those persons who labour under such partial delusions only, and are not
in other respects insane, we are of opinion that notwithstanding the
accused did the act complained of with a view, under the influence
of insane delusion, of redressing or revenging some supposed grievance
or injury, or of producing some public benefit, he is nevertheless punish-
able, according to the nature of the crime committed, if he knew at the
time of committing such crime that he was acting contrary to law, by which
expression we understand your lordships to mean the law of the land.'

Q. II. ' What are the proper questions to be submitted to the jury
where a person alleged to be afflicted with insane delusion respecting
one or more particular subjects or persons, is charged with the com-
mission of a crime (murder, for example), and insanity is set up as a
defence ? '

Q. III. ' In what terms ought the question to be left to the jury
as to the prisoner's state of mind, at the time when the act was com-
mitted ? '

A. II. and III. ' As these two questions appear to us to be more
conveniently answered together, we submit oiir opinion to be that the
■jury ought to be told in all cases that every man is to be presumed to be
sane, and to possess a sufficient degree of reason to be responsible for his
crimes, until the contrary be proved to their satisfaction ; and that to
establish a defence on the ground of insanity it must be clearly proved that,
at the time of committing the act, the accused was labouring under such a
defect of reason, from disease of the mind, as not to know the nature and
quality of the act he was doing, or, if he did know it, that he did not know
he was doing what was wrong. The mode of putting the latter part of the
question to the jury on these occasions has generally been, whether the

(i!) Qumre, this position also, as a man put questions to the judges on matters not

may not have a per/ecWy sound mind, and judicially before the house see Wood

yet be criminally responsible ? Renton, Lunacy, 889. For medical criticism

(m) Macnaughton s case, 4 St. Tr. (N. S.) on the case see Mercier, Criminal Resnonsi-

847 ; 10 CI. & P. 200 ; 8 E. R. 718. bility, o. viii. J^^sponsi

(n) As to the authority of the H. L. to

CHAP. IV.J Insanity — Macnaughton's Case. 69

accused at the time of doing the act knew the difference between right and
wrong (o) ; which mode, though rarely, if ever, leading to any mistake
with the jury, is not, as we conceive, so accurate when put generally
and in the abstract, as when put with reference to the party's knowledge
of right and wrong, in respect to the very act with which he is charged. If
the question were to be put as to the knowledge of the accused solely
and exclusively with reference to the law of the land, it might tend
to confound the jury, by inducing them to believe that an actual know-
ledge of the law of the land was essential in order to lead to a conviction :
whereas, the law is administered upon the principle that every one must
be taken conclusively to know it, without proof that he does know it. //
the accused was conscious that the act was one that he ought not to do, and if
that act was at the same time contrary to the law of the land, he is punishable ;
and the usual course, therefore, has been to leave the question to the jury,
whether the accused had a sufl&cient degree of reason to know that he was
doing an act that was wrong ; and this course we think is correct, accom-
panied with such observations and explanations as the circumstances
of each particular case may require ' {p).

Q. IV. ' If a person under an insane delusion as to existing facts
commits an offence in consequence thereof, is he thereby excused ? '

A. IV. ' The answer must, of course, depend on the nature of the
delusion ; but making the same assumption as we did before, namely,
that he labours under such partial delusion only, and is not in other
respects insane, we think he must be considered in the same situation
as to responsibility as if the facts with respect to which the delusion
exists were real. For example, if, under the influence of his delusion,
he supposes another man to be in the act of attempting to take away
his life, and he kUls that man, as he supposes, in self-defence, he would
be exempt from punishment. If his delusion was that the deceased
had inflicted a serious injury to his character and fortune, and he
killed him in revenge for such supposed injury, he would be liable to
punishment.'

Q. V. ' Can a medical man, conversant with the disease of insanity,
who never saw the prisoner previously to the trial, but who was present
during the whole trial, and the examination of the witnesses, be asked
his opinion as to the state of the prisoner's mind at the time of the com-
mission of the alleged crime, or his opinion whether the prisoner was
conscious at the time of doing the act that he was acting contrary to
law, or whether he was labouring under any, and what, delusion at
the time ? '

(o) See Mayne, Ind. Cr. L. (1896), 378. though somewhat deranged, he is able to

(p) In Alison's Principles of the Criminal distinguish right from wrong, in his own

Law of Scotland, p. 634, cited in R. t. case, and to know that he was doing wrong

Oxford, 9 C. & P. 532 ; 4 St. Tr. (N. S.) 497, in the act which he committed, he is liable

by Campbell, Att.-Gen., it is said, that ' to to the full punishment of his criminal acts.'

amount to a complete bar of punishment, Maonaughton's case has been followed in

either at the time of committing the offence, Scotland. Gibson's case, 2 Brown (Sc),

or of the trial, the insanity must have been 332. But see Brown's case [1907], 9 Fraser

of such a kind as entirely to deprive the (Just.) 67, 76. In American and Colonial

prisoner of the use of reason, as applied to Courts it is not accepted as fully expressing

the act in question, and the knowledge that the directions proper to cases of irresistible

he was doing wrong in committing it. If, impulse. See Arclib. Cr. PI. (23rd ed.), 26n.

Of Criminal Responsibility.

[BOOK 1.

A. y. ' We think the medical man, under the circumstances sup-
posed, cannot, in strictness, be asked his opinion in the terms above
stated, because each of those questions involves the determination of the
truth of the facts deposed to, which it is for the jury to 'decide, and the
questions are not questions upon a mere matter of science, in which
case such evidence is admissible. But where the facts are admitted,
or not disputed, and the question becomes substantially one of science
only, it may be convenient to allow the question to be put in that general
form, though the same cannot be insisted on as a matter of right ' [q).

In R. V. Vaughan (r) the prisoner, who was charged with steaHng a
cow, had had his cow taken from him under an illegal distress, and, with
a view of recovering her, he had gone in the night to the close of the
prosecutor, who had purchased her, and taken another cow out of it.
Owing to the loss of his cow, and various other losses, the prisoner's mind

(q) 1 C. & K. 130, 10 C. & F. 200. Maule,
J., after expressing the difficulty he felt in
answering the questions, because they did
not arise out of, and were not put with
reference to, a particular case, or for a par-
ticular purpose, which might limit or ex-
plain the generality of their terms, said, in
answer to the first question, ' So far as it
comprehends the question whether a person
circumstanced as stated in the question is
for that reason only to be found not guilty
of a crime respecting which the question of
his guilt has been duly raised in a criminal
proceeding, and I am of opinion that he is
not. There is no law that I am aware of
that makes persons in the state described
in the question not responsible for their
criminal acts. To render a person irres-
ponsiblefor crime on account of unsoundness
of mind the unsoundness should, according to
the law as it has been long understood and
held, be such as to render him incapable of
knowing right from wrong. The terms used
in the question cannot be said (with refer-
ence only to the usage of language) to be
equivalent to a description of this kind and
degree of unsoundness of mind.' To the
second question the learned judge answered,
' If, on a trial such as is suggested in the
question, the judge should have occasion
to state what kind and degree of insanity
would amount to a defence, it should be
stated conformably to what I have men-
tioned in my answer to the first question as
being, in my opinion, the law on this subject.'
To the third question the learned judge
replied, ' There are no terms which the
judge is by law required to use. They
should not be inconsistent with the law as
above stated, but should be such as, in the
discretion of the judge, are proper to assist
the jury in coming to a right conclusion as
to the guilt of the accused.' To the fourth
question the learned judge replied that the
answer to the first question was applicable
to this. To the fifth question the learned
judge replied, ' Whether a question can be
asked depends, not merely on the questions

of fact raised on the record, but on the
course of the cause at the time when it is
proposed to ask it ; and the state of an
inquiry as to the guilt of a person charged
with a crime, and defended on the ground
of insanity may be such that such a ques-
tion as either of those suggested is proper
to be asked and answered, though the wit-
ness has never seen the person before the
trial, and though he has been present and
heard the witnesses ; these circumstances
of his never having seen the person before,
and of his having been present at the trial,
not being necessarily sufficient, as it seems
to me, to exclude the lawfulness of a ques-
tion, which is otherwise lawful, though I
will not say that an inquiry might not be in
such a state as that these circumstances
should have such an effect. Supposing
there is nothing else in the state of the trial
to make the questions suggested proper to
be asked and answered, except that the
witness had been present and heard the
evidence, it is to be considered whether that
is enough to susta.in the question ; in
principle it is open to the objection that as
the opinion of the witness is founded on
those conclusions of fact, which he forms
from the evidence, and as it does not appear
what these conclusions are, it may be that
the evidence he gives is on such an assump-
tion of facts as makes it irrelevant to the
inquiry. But such questions have been
very frequently asked, and the evidence to
which they are directed given, and has
never, that I am aware of, been successfully
objected to ; and I think the course and
practice of receiving such evidence, con-
firmed by the very high authority of Tindal,
C.J., Williams, J., and Coleridge, J., inR. v.
Macnaughton, who not only received it,
but left it, as I understand, to the jury
without any remark derogating from its
weight, ought to be held to warrant its
reception, notwithstanding the objection
in principle to which it may be open.'
(r) [1844] 1 Cox, 80.

CHAP. IV.] Criteria of Insanity. 71

was affected, and he was under the impression that every one was robbing
him. Tindal, C.J., told the jury that it is not mere eccentricity or singu-
larity of manner that will suffice to establish the plea of insanity ; it must be
shewn that the prisoner ' had no competent use of his understanding, so as
to know that he was doing a wrong thing in the particular act in question.'

In R. V. Higginson (s), a trial for murder, by burying a child alive,
upon the surgeon, called for the prosecution, being asked whether a
fracture of the skull was the cause of the death, or whether the child
had, after the fracture of the skull, been suffocated by being buried while
alive, the prisoner said, in open court, ' I put him in alive.' Two
witnesses stated that the prisoner was of ' very weak intellect,' and the
surgeon of the prison stated that the prisoner was of 'very weak intellect
but capable of knowing right from wrong.' Maule, J., after adverting to
the evidence adduced, said to the jury, ' If you are satisfied that the
prisoner committed this offence, but you are also satisfied that, at the time
of the committing the offence, the prisoner was so insane that he did not
know right from wrong, he should be acquitted on that ground; but if you
think that, at the time of committing the offence, he did know right from
wrong, he is responsible for his acts, although he is of weak intellect' (i).

In E. V. Stokes (m), upon an indictment for murder it appeared that
the prisoner, in the soldiers' room in the barracks, took up his musket
as if to clean it, levelled it at the deceased, fired and killed her on the
spot ; her husband and child being in the room, and two other soldiers
being present. The prisoner was a man of singular habits, and seldom
spoke to the other soldiers, was very ' secluded, sulky, and sullen,' and
was described as ' a close-minded man,' and ' a man of a very nasty temper.'
He had frequently complained of illness, and had made efforts to get into
the hospital, but he was rejected, as having no visible disorder. (The
report contains a statement of sundry other facts as to the prisoner's
state of mind.) The defence was that the prisoner was insane, or that
he was under such an insane impulse as to render him irresponsible.
Rolfe, B., in summing up said : ' If a prisoner seeks to excuse himself
upon the plea of insanity, it is for him to make it clear that he was insane
at the time of committing the offence charged. The onus rests on him ;
and the jury must be satisfied that he actually was insane. If the matter
be left in doubt, it will be their duty to convict him ; for every man must
be presumed to be responsible for his acts till the contrary is clearly shewn.
A case occurred some time ago at the Central Criminal Court, before
Alderson, B., and the jury hesitated as to their verdict, on the ground
that they were not satisfied whether the prisoner was or was not of sound
mind when he committed the crime ; and that learned judge told them,
that, unless they were satisfied of his insanity, it would be their duty to
find a verdict of guilty. Every man is held responsible for his acts by
the law of this country, if he can discern right from wrong. This subject
was a few years ago carefully considered by all the judges, and the law
is clear upon the subject (v). It is true, that learned speculators, in

(«) [1843] 1 C. & K. 129. right from wrong.' C/. R. w. Richards, ibid.

(I) In R. V. Davies [1858], 1 F. & F. 69, 87, Crowder, J., a case of paroxysms.

70, Crompton, J., said : ' You must find (u) [1848] 3 C. & K. 18.5.

that from mental disease he did not know (v) See Macnaughton's case, ante, p. 67.

72 Of Criminal Responsibility. [BOOK I.

their writings, have laid it down that men, with a consciousness that
they were doing wrong, were irresistibly compelled to commit some
unlawful act(w). But who enabled them to dive into the human heart,
and see the real motive that prompted the commission of such deeds ?
It has been urged that no motive has been shown for the commission of
this crime. It is true that there is no motive apparently but a very
inadequate one ; but it is dangerous ground to take, to say that a man
must be insane because men fail to discern the motive for his act. It
has also been said that the conduct of the prisoner was that of a madman
in committing the offence at such a time, in the presence of the woman's
husband, who had arms within his reach ; but it would be a most dangerous
doctrine to lay down, that because a man committed a desperate offence,
with the chance of instant death, and the certainty of future punishment
before him, he was therefore insane, as if the perpetration of crimes was
to be excused by their very atrocity ' (x).

In'R.v. Barton (y), on the trial of a man for the murder of his wife, it
appeared that he had always treated her and their children with kindness ;
that they were talking with a neighbour at their door late at night, and
at four o'clock next morning it was discovered that he had cut the throats
of his wife and child, and had attempted to commit suicide. When
questioned, he exhibited no sorrow or remorse for his conduct, but stated
that ' trouble and dread of poverty and destitution had made him do it,
fearing that his wife and -child would starve when he was dead.' He
said he had contemplated suicide for a week past ; he had not had any
quarrel with his wife, and that, having got out of bed to destroy himself,
the thought had first come into his head to kill his wife and chUd ; he
had first attacked her whilst she was asleep in bed ; she got away from
him, and rushed to the window ; he then killed the child, and seizing
his wife, pulled her backwards to him, and cut her throat ; he next tried
to cut his own throat, but his powers failed him, and he did not succeed,
though he wounded himself severely. This narrative, coupled with a
knowledge of the prisoner's private circumstances, induced the surgeon
to form the opinion that the prisoner, at the time he committed the act,
had not, in consequence of an uncontrollable impulse, to which all human
beings are subject, any control over his conduct. The desire to inflict
pain and injury on those previously dear to the prisoner, was in itself a
strong symptom of insanity, and the impossibility of resisting a sudden
impulse to slay a fellow-being, was another indication that the mind
was insane. There was not necessarily a connection between homicidal
and suicidal monomania, though it would be more likely that a mono-
maniac who had contemplated suicide should kill another person, than
for one who had not entertained any such feelings of hostility to his own
existence. Monomania was an affection, which, for the instant, com-
pletely deprived the patient of all self-control in respect of some one
particular subject which is the object of the disease. The prisoner had

{w) See Steph. Dig. Cr. Law (6th ed.), (b), 387, 388.

art. 28 (c). Mercier, Criminal Responsibility, (a;) But see R. v. .Jefl'erson, 72 J.P. 4fi7 ;

(Oxford, 1906). Pari. Pap. 1908 (c. 4202), 1 Cr. App. R. 95.

p. 141. 1 Bishop American Cr. L. sa. 383 {y] [18481 3 Cox, 275.

CHAP. IV.] Criteria of Insanity. 73

no delusion, and his reasoning faculties did not seem to be affected ; but
he had a decided monomania evincing itself in the notion that he was
coming to destitution. For that, there was some foundation in fact ;
but it was the surgeon's decided opinion that the prisoner was in an
unsound state of mind at the moment he cut his wife's throat. On the day
before, the prisoner had had his razor sharpened, saying he wanted it to
give to some friend ; and the prisoner had suffered a severe pecuniary
loss not long before, and it had produced a decided effect upon his mind,
giving rise to the most gloomy anticipations on account of his wife and
family. Parke, B., told the jury that the only question was whether,
at the time the prisoner inflicted the wound on his wife, ' he was in a state
of mind to be made responsible to the law for her murder. That would
depend upon the question, whether he, at the time, knew the nature and
character of the deed he was committing, and, if so, whether he knew
he was doing wrong in so acting. This mode of dealing with the defence
of insanity had not, he was aware, the concurrence of medical men ;
but he must, nevertheless, express his decided concurrence with Eolfe,
B.'s views of such cases (2), that learned judge having expressed his
opinion that the excuse of an irresistible impulse co- existing with the
full possession of reasoning powers might be urged in justification of
every crime known to the law — for every man might be said, and truly,
not to commit any crime except under the influence of some irresistible
impulse. Something more than this was necessary to justify an acquittal
on the ground of insanity, and it would therefore be for the jury to say
whether, taking into consideration all that the surgeon had said, which
was entitled to great weight, the impulse, under which the prisoner had
committed this deed, was one which altogether deprived him of the
knowledge that he was doing wrong. Could he distinguish between
right and wrong ? Reliance was placed on the desire to commit suicide,
but that did not always evidence insanity. And here the prisoner was
led to attempt his own life by the pressure of a real substantial fact clearly
apparent to his perceptive organs, and not by any unsubstantial delusion.
The fact, however, must be taken into the account, for it might have had
a serious effect on the mind of the prisoner, as also the absence of any
attempt to escape from justice, and the want of all sense of sorrow and
regret immediately after the death of his wife, contrasted with his more
natural state of mind afterwards, when he felt and expressed regret and
sorrow for his act. These circumstances ought all to be taken into con-
sideration ; but it was difiicult to see how they could establish the plea
of insanity in a case where there was a total absence of aU delusion ' {a).

In R. V. Burton (6), the prisoner, a youth of eighteen, at first pleaded
guilty to an indictment for murder ; the judge warned him that this
would not affect his fate ; his counsel said he was insane, and desired to
be hung ; the prisoner, however, with apparently perfect intelligence,
retracted his plea, and pleaded not guilty. The deceased, a boy, had
been found with his throat cut, and the prisoner gave himself up, and
admitted the act, recounting all the circumstances with perfect intelligence;

(2) Expressed in R. v. Stokes, ante, (a) Verdict guilty.

p. 71. (ft) [1803] 3 F. & R 772.

74 Of Criminal Resfonsihility. [Book 1.

and it did not appear that there was any ill-will to the boy, and the
prisoner had said, ' I had no particular ill-feeling against the boy, only
I had made up my mind to murder some one.' He added that he had
wiped his hands and the knife. Afterwards he said that it was well for
a Mr. C. that he had left Chatham, for he had prosecuted him, and he had
made up his mind to murder him when he came out of gaol. Evidence
was given on behalf of the prisoner of strange conduct, and a surgeon
proved that on two occasions he had sent the prisoner's mother to a
lunatic asylum : she was low and desponding, and attempted suicide.
The prisoner's brother was of weak intellect. On two occasions he had
attended the prisoner, and said he believed he was labouring under what,
in the profession, would be considered as moral insanity ; that is, he
knows perfectly well what he is doing, but has no control over himself.
By the moral feelings he meant the propensities which may be diseased,
while the intellectual faculties are sound ; and that, having heard the
evidence, in his opinion, it was reasonable to believe that there must in
the prisoner's case be some derangement of the brain, — some deviation
from the normal condition of the brain. On cross-examination, he
stated that he believed the prisoner knew what he was doing, but that
an impulse came upon him, which he could not control ; and he adopted
an opinion of Dr. Winslow that no man could commit suicide in a state
of sanity. He believed the prisoner had no proper control over his actions.
He had a knowledge of right and wrong, but could not control his actions.
Evidence on the part of the Crown was given to shew that the prisoner
was sane. Wightman, J., said that ' in Macnaughton's case (c) the judges
laid down the rule to be that there must, to raise the defence, be a defect
of reason from disease of the mind, so as that the person did not know
the nature and quality of the act he committed, or did not know whether
it was right or wrong. It was not mere eccentricity of conduct which
made a man irresponsible for his acts. The medical man called for the
defence had defined homicidal mania to be a propensity to kill, and
described moral insanity as a state of mind under which a man, perfectly
aware that it was wrong to do so, killed another under an uncontrollable
impulse. This seemed to be a most dangerous doctrine, and fatal to the
interests of society and security of life. The question was whether such
a theory was in accordance with law. The rule, as laid down by the
judges, was quite inconsistent with such a view ; for it. was, that a man
was responsible for his actions if he knew the difference between right
and wrong. It was urged that the prisoner did the act in order to be
hanged, and so was under an insane delusion ; but what delusion was
he under ? So far from it, it showed that he was quite conscious of the
nature of the act and its consequences. He was supposed to desire
to be hanged, and in order to attain the object committed murder. That
might show a morbid state of mind, but not delusion. Homicidal mania,
again, as described by the witnesses for the defence, showed no delusion ;
it merely showed a morbid desire for blood. Delusion meant the belief
in what did not exist. The question for the jury was, whether the prisoner
at the time he committed the act was labouring under such a species of

CHAP. IV.] Criteria of Insanity. 75

insanity as to be unaware of the nature, the character, or the consequences
of the act he committed. In other words, whether he was incapable of
knowing that what he did was wrong.'

In R. V. Townley {d) on an indictment for murder, it appeared that
the prisoner had been engaged to the deceased, but her friends disapproved,
and the engagement was broken off, but renewed afterwards. However,
the deceased formed an attachment for another, and wrote to the prisoner
to break off the engagement ; and he wrote three very sensible letters
in reply to hers, that he would not stand in her way if she was resolved
to part with him, but that he should prefer to have an interview with
her, and to hear her determination from her own lips. Accordingly
he went to the place where she lived, and they were seen together, and
she was afterwards found with her throat cut in three places. The
prisoner came up and assisted to carry her to the house, repeatedly stating
that he had done it, and should be hanged for it. He said also, ' Poor
Bessie ! you should not have proved false to me.' He told her grand-
father, who asked what was amiss, ' It is your granddaughter, Betsy,
murdered. She has deceived me, and the woman that deceives me
must die.' The prisoner behaved throughout with apparent indifference,
and, on the arrival of the police, said that he wished to give himself up
for murdering the young lady ; and added, ' I am far happier now I have
done it than I was before, and I trust she is.' Evidence was given that
there had been insanity in the family, and Dr. Winslow stated that he had
seen the prisoner. ' I talked to him largely on the subject of the crime,
and I am of opinion that at the present moment he is a man of deranged
intellect. He told me he did not recognise he had committed any crime
at all, neither did he feel any degree of pain, regret, contrition, or remorse
for what he had done. I endeavoured to impress on his mind the serious
nature of the crime he had committed. He repudiated the idea of its
being a crime either against God or man, and attempted to justify the
act, alleging that he considered Miss Goodwin as his own property ; that
she had been illegally wrested from him by an act of violence ; that he
viewed her in the light of his wife, who had committed an act of adultery ;
and that he had as perfect a right to deal with her life as he had with any
other description of property, — as the money in his pocket, &c. I
endeavoured to prove to him the gross absurdity of his statement and
the enormity of his offence: he repHed, "Nothing short of a miracle can
alter my opinions." The expression that Miss Goodwin was his property
was frequently repeated. He killed her, he said, to recover property
which had been stolen from him. I could not disturb this, as I thought,
very insane idea. I said, " Suppose anyone robbed you of a picture,
what course would you take to recover it ? " He said he would demand
its restitution, and if it were not granted, he would take the person's life
without compunction. I remarked that he had no right to take the law
into his own hands ; he should have recourse to legal measures to obtain
restitution. He replied that he recognised the right of no man to sit in
judgment upon him ; he was a free agent ; and as he did not bring himself
into the world by any action of his own, he had perfect liberty to think

(d) [1863] 3 F. & F. 839.

76 Of Criminal Responsibility. [BooK 1.

and act as lie pleased, irrespective of anyone else. I regard these expres-
sions as evidence of a diseased intellect. He said he had been for some
weeks under the influence of a conspiracy ; there were six conspirators
plotting against him, with a view to destroy him, with a chief conspirator
at their head. This conspiracy was still going on while he was in })rison,
and he had no doubt that, if he were at liberty, they would continue their
operations against him, and in order to escape their evil purposes he
would have to leave the country. He became much excited, and assumed
a wild, demoniacal aspect. I am satisfied that aspect was not simulated.'
On cross-examination he said, ' I have no doubt he knows that these
opinions of his are contrary to those generally entertained, and that, if
acted upon, they would subject him to punishment. I should think
that he would know that killing a person was contrary to law, and wrong
in that sense. I should think, from his saying he should be hanged, that
he knew he had done wrong. His moral sense was more vitiated than
I ever found that of any other human being. His opinions were pretty
much those of atheists, but he was beyond atheism. He seemed incap-
able of reasoning correctly .on any moral subject. He denied the existence
of a God and of a future world. He said it was a matter of perfect in-
difference whether he was dead or alive.' Martin, B., told the jury that
what the law meant by an insane man was, a man who acted under delu-
sions, and supposed a state of things to exist which did not exist, and
acted thereupon. A man who did so was under a delusion, and a person
so labouring was insane. In one species of insanity the patient lost his
mind altogether, and had nothing but instinct left. Such a person
would destroy his fellow-creatures, as a tiger did his prey, by instinct only.
A man in that state had no mind at all, and therefore, was not criminally
responsible. The law, however, went farther than that. If a man
labouring under a delusion did something of which he did not know the
real character — something of the effect and consequences of which he
was ignorant — he was not responsible. An ordinary instance of such
delusion was where a man fancied himself a king, and treated all around
him as his subjects. If such a man were to kill another under the sup-
position that he was exercising his prerogative as a king, and that he was
called upon to execute the other as a criminal, he would not be responsible.
The result was, that if the jury believed that at the time the act was
committed the prisoner was labouring under a delusion, and beUeved
that he was doing an act that was not wrong, or of which he did not know
the consequences, he would be excused. If, on the other hand, he well
knew that his act would take away life — that that act was contrary to
the law of God, and punishable by the law of the land — he was guilty of
murder. In his opinion the law was best laid down by Le Blanc, J., in
Bowler's case (e), who told the jury that it was for them to determine
whether the prisoner, when he committed the offence, was incapable of
distinguishing right from wrong, or under the influence of any illusion
which rendered his mind at the moment insensible of the nature of the
act he was about to commit ; since in that case he would not be legally
responsible for his conduct. On the other hand, provided they should

(e) Ante, p. 64.

CHAP. IV.] Criteria of Insanity. 77

be of opinion that when he committed the act he was capable of dis-
tinguishing right from wrong, and not under the influence of such an
illusion as disabled him from discerning that he was doing a wrong act,
he would be amenable to justice. After noticing other cases, Martin, B.,
told the jury that they must judge of the act by the prisoner's statements
and by what he did at the time. Unless they were satisfied — and it was
for the prisoner to make it out — that he did not know the consequences
of his act, or that it was against the law of God and man, and would
subject him to piinishment, he was guilty of murder. The prisoner's
letters appeared to be as sensible letters as ever he had read. Again,
the reason the prisoner gave for his act was, ' She should not have proved
false to me.' Now, if his real motive was that he conceived himself to
have been ill-used, and either from jealousy of the man who was preferred
to him, or from a desire of revenge upon her, committed the act, that
would be murder. Those were the very passions which the law required
men to control ; and if the deed was done under the influence of those
' passions, there was no doubt it was murder. The prisoner's expression,
that he should be hanged for it, indicated that he knew the consequences
of his act. Another reason he gave for what he had done was, ' The
woman who deceives me must die.' If a young lady promised to marry
a man, and then changed her mind, it might be truly said that she de-
ceived him ; but what would be the consequences to society if men were
to say every woman who treated them in that way should die, and were to
carry out those views by cutting their throats ? The prisoner claimed
to exercise the same power over a wife as he could lawfully exercise over
a chattel ; but that was not a delusion, nor like a delusion. It was the
conclusion of a man, who had arrived at results different from those
generally arrived at, and contrary to the laws of God and man ; but
it was not a delusion. It had been said by one of the witnesses that the
prisoner did not know the difference between good and evil. If that
was a test of insanity, many men were tried who did not know that
difference. In truth, it was no test at all. The idea of a conspiracy was
a delusion, but the mere setting himself up against the law of God and
man was not a delusion at all. The question for the jury was. Was the
prisoner insane, and did he do the act under a delusion, believing it to
be other than it was ? If he knew what he was doing, and that it was
likely to cause death, and was contrary to the law of God and man, and
that the law directed that persons who did such acts should be punished,
he was guilty of murder.

In E. V. Haynes (/), a trial for murder of a woman, the prisoner
appeared to have been on the most intimate terms with the deceased.
No motive was assigned for the murder. The prisoner having seduced
a young woman under a promise of marriage, which he had been unable
to fulfil, his reason had been much affected by it. Bramwell, B., read
the opinion of the judges in the House of Lords to the jury, and then said,
' It has been urged that you should acquit the prisoner on the ground
that, it being impossible to assign any motive for the perpetration of the
offence, he must have been acting under what is called a powerful and

{/) [1859] 1 F. & F. 666.

78 Of Criminal Responsibility. [book i.

irresistible influence, or homicidal tendency. But the circumstances of
an act being apparently motiveless, is not a ground from which you can
safely infer the existence of such an influence. . Motives exist unknown
and innumerable, which might prompt the act. A morbid and restless,
but resistible, thirst for blood, would itself be a motive urging to such
a deed for its own relief (//). But if an influence be so powerful as to be
termed irresistible, so much the more reason is there why we should not
withdraw any of the safeguards tending to counteract it. There are
three powerful restraints existing, all tending to the assistance of the
person who is suffering under such an influence, — the restraint of religion,
the restraint of conscience, and the restraint of law. But if the influence
itself be held a legal excuse, rendering the crime dispunishable, you at
once withdraw a most powerful restraint — that forbidding and punishing
its perpetration. We must return, therefore, to the simple question you
have to determine — did the prisoner know the nature of the act he was
doing, and did he know that he was doing what was wrong ? ' (g)

In R. V. Layton (h), a trial for murder, the prisoner and his wife
were walking along a road, and he had been for some time chiding
her. He then fired a pistol at her and she fell ; and he pulled her
up, and they proceeded a few yards, when he pushed her down, and
inflicted a second wound on her throat with a knife. He then got over a
hedge into a field, and ran some distance, until he was overtaken by a
person who had seen the woman fall. The prisoner wiped the blood off his
hands, saying he had met with a misfortune and cut his finger. He
would not tell what he had done with the pistol and knife, but said,
' I did it. I intended to do it, and that will put an end to it. I have
been unhappy since Christmas.' When he shot and cut his wife,
he must have known that persons were within a short distance, having
just before met them. He had threatened to murder his wife
before, and on the day before he was heard sharpening a knife,
and the wife was afterwards seen running out of the house, followed
by the prisoner with a knife similar to one found near the place where
the murder was committed. The prisoner had been in gaol for debt
for two months in the early part of the year, and had been unfortunate
in building speculations. Several witnesses called for the prisoner
stated that they believed that the prisoner was not in his right
mind, and proved sundry statements made by him as to his property
and other matters, which were alleged to be delusions, and that his
conduct had been strange, and his manner greatly excited. For the
prosecution, witnesses were called to prove that he was sane, and had
acted in matters of business in a rational manner. Rolfe, B., told the
jury that insanity was the most difficult question which could engage
the attention of any tribunal. It was difficult to define it in words,
or even in idea. The opinion of the judges was taken by the House of
Lords a few years back, as to what was to constitute a definition of
insanity, and it created very great difficulty, but after great and anxious
deliberation, they came to the conclusion that the old description was

(//) In homicide cases it is intent and Ellwood [1908J, 1 Cr. App. E. 181 (C.C.A.).
not motive which is crucial. R. v. Dixon {g) C£. R. v. Brough, 2 F. & F. 838n.

[1869], 11 Cox, 311, Montague Smith, J. R. v. (h) [1849] 4 Cox, 149.

CHAP. IV.] Criteria of Insanity. 79

the best, viz., that insanity should constitute a defence only when a
party was in such a state of mind arising from disease as to be incapable
of deciding between right and wrong ; but that this definition was
imperfect, as all definitions must be, and would require to be modified
with reference to each particular case. Applying that law to the present
case, what the jury had to consider was, whether the evidence was such
as to satisfy them that at the time the act was committed by the prisoner,
he was incapable of understanding right from wrong, as that he could
not appreciate the nature of the act he was committing. Perhaps it
would be going too far to say that a party was responsible in every
case where he had a glimmering knowledge of what was right and wrong.
In cases of this description, there was one cardinal rule which should
never be departed from, viz., the burden of proving innocence rested
on the accused. Every man committing an outrage on the person or
property of another, must be, in the first instance, taken to be a responsible
being. Such a presumption was necessary for the security of mankind.
A man going about the world, marrying, dealing, and acting as if he
were sane, must be presumed to be sane till he proves the contrary.
The question, therefore, would be, not whether the prisoner was of
sound mind, but whether he had made out to their satisfaction that
he was not of sound mind. They might arrive at the conclusion, from
the nature of his conduct and acts up to the time of the act in question,
or shortly preceding it, that he was insane ; though he was not capable
of proving it by positive testimony, as such was the nature of the mind,
that it might be one minute sane, and the next insane, and therefore
it might be impossible for a party to give positive evidence of its condition
at the particular moment in question. The conclusion seemed irresistible,
that the prisoner was to some extent labouring under a delusion, but
he was not exempt from responsibility because he was labouring under
a delusion as to his property, unless that had the effect of making him
incapable of understanding the wickedness of murdering his wife. But
when that was the question they had to consider, he could not say that
it was altogether immaterial that he was insane on one point only {i).
Indeed his insanity on that point might guide them to a conclusion as
to his sanity on the point involved in this case, and, in this view of the
matter, there were two circumstances in the evidence of great importance :
these were, the want of motive for the commission of the crime, and
its being committed under circumstances which rendered detection
inevitable. They could come to no other conclusion than that the
prisoner had taken away the life of his wife, and that this was murder,
unless he had satisfied them that he was not capable at the time of
appreciating his acts (j).

(i) Qumre, omit ' only,' which seems in- not guilty on the ground of insanity ; that

consistent with the context. was an issue far too vague, indefinite, and

(j) Cf. R. V. Law [1862], 2 F. & F. 836. undefined. The issue was, whether or not

In B. V. Leigh [1866], 4 P. & F. 915, where when he did the aat, he was legally respon-

on the trial of an indictment for murder, sible ; in other words, whether he knew, its

insanity was set up as a defence, Erie, C.J., nature, and knew that it was wrong. The

said, ' The question was, whether the distance, indeed, between the extreme

prisoner was or was not responsible when points of manifest mania and perfect sense

he committed the act, not whether he was was great, but they approach by gradual

80 Of Criminal Responsibility. [book i.

It is usual but not essential in a question of insanity to call medical
witnesses or lunacy experts (k).

In R. V. Wright (I), on a trial for murder, the prisoner was aicquitted,
but a question was reserved as to whether the evidence of a medical
man was properly admitted. He volunteered his evidence, and wished
to give his opinion upon the evidence as to the state of the prisoner's
mind at the time the act was done ; and he was allowed so to do. The
judges did not come to any formal resolution ; but they all thought
that in such a case a witness of medical skUl might be asked, whether
in his judgment such and such appearances were symptoms of insanity,
and whether a long fast, followed by a draught of strong liquor, was likely
to produce a paroxysm of the disorder in a person subject to it ? and
that by such questions the effect of his testimony might be got in an
unexceptionable manner. Several of the judges doubted whether the
witness could be asked on the very point which the jury were to decide ;
viz., whether, from the testimony given in the case, the act with which
the prisoner was charged was, in his opinion, an act of insanity ? In
R. V. Searle(m),a case of malicious wounding, where it was proposed
to call a physician who had heard the whole evidence, to give his opinion
as to the insanity of the prisoner. Park, J., after referring to the pre-
ceding case, allowed the physician to be asked whether the facts and
appearances proved shewed symptoms of insanity.

In R. V. Frances (w), where the defence to an indictment for murder
was that the prisoner was insane at the time he committed the act, and
witnesses were called to prove that insanity had existed in many members
of the prisoner's family and that he had been insane for three years, a
physician, who had been in court during the whole trial, was asked
by the counsel for the prosecution ' whetlier, from all the evidence he
had heard, both for the prosecution and defence, he was of opinion
that the prisoner, at the time he did the act, was of unsound mind ? '
and the opinion of the judges in answer to the fifth question in
Macnaughton's case (o) was cited in support of the question. Alderson,
B., and Cresswell, J., held that the question ought not to be put. The
proper mode is to ask what are the symptoms of insanity, or to take
particular facts, and assuming them to be true, to ask whether they
indicate insanity. To take the course suggested is really to substitute
the witness for the jury, and allow him to decide upon the whole case.
The jury have the facts before them, and they alone must interpret
them by the general opinions of scientific men(p).

steps and slow degree. The law, however, (p) Of. R. v. Burton, ante, p. 73. In

did not say that when any degree of m- Doe v. Bainbrigge, 4 Cox, 454, the trial of

sanity existed, the party was not respon- an ejectment where the question turned on

sible, but that when he was in a state of the sanit}"- of the testator, and a physician

mind to know the distinction between right was asked whether in his opinion, from the

and wrong, and the nature of the act he facts proved in evidence, the testator was

committed, he was responsible.' See also sane or insane, Campbell, C.J., said the ■

R. V. Southey [1866], 4'F. & F. 864. witness might give general scientific evi-

{k) R. V. Dart, 14 Cox, 143. dence on the causes and symptoms of

(I) [1823] R. & R. 456. insanity, but he must not express an

(m) [1831] 1 M. & Rob. 75. opinion as to the result of the evidence he

(«) 4 Cox, 57. had heard with reference to the sanity or

(o) Ante, p. 67. insanity of the testator ; his lordship saying

CHAP. IV.] Criteria of Insanity. 81

• Where the defence of insanity has been set up, it has been common
practice to prove that other members of the prisoner's family have
been afflicted with insanity ; but it is a matter of fact that insanity
is often hereditary in a family, and therefore that fact should be proved,
in the first instance, by the testimony of medical men, and then the
inquiry whether another member of the prisoner's family has been insane
will be legitimate {q).

Where in support of a defence of insanity the prisoner's counsel
attempted to quote from ' Cooper's Surgery ' the author's opinions on
the subject, in his address to the jury, on the ground that they were
the sentiments of one who had studied the subject, and submitted that
it was admissible in the same way as opinions of scientific men on matters
appertaining to foreign law ; Alderson, B., said : 'I should not allow you
to read a work on foreign law. Any person who was properly con-
versant with it might be examined ; but then he adds his own personal
knowledge and experience to the information he may have obtained
from books. We must have the evidence of individuals, not their
written opinions. You surely cannot contend that you may give the
book in evidence, and if not, what right have you to quote from it in
your address, and do that indirectly which you would not be permitted
to do in the ordinary course ? ' And on its being said that it was cer-
tainly done in Macnaughton's case, Alderson, B., added, 'And that shows
still more strongly the necessity for a stringent adherence to the rules
laid down for our observance. But for the non-interposition of the
judge in that case, you would not probably have thought it necessary
to make this struggle now ' (r).

The application of the rules and principles laid down in these cases
to each particular case as it may arise, will necessarily in many instances
be attended with difficulty ; more especially with regard to the true
interpretation of the expressions, which state that the prisoner, in
order to be a proper subject of exemption from punishment on the
ground of insanity, should appear to have been unable ' to distinguish
right from wrong' or to discern 'that he was doing a wrong act' or should
appear to have been ' totally def rived of his understanding and memory ' ;
as even in Hadfield's case (s) his expressions when apprehended, that
' he was tired of life,' that ' he wanted to get rid of it,' and that ' he
did not intend anything against the life of the King, but knew that the
attempt only would answer his purpose ' ; seem to shew that he must
have been aware that he was doing a wrong act, though the degree of
its criminality might have been but imperfectly presented to him, through
the morbid delusion by which his senses and understanding were affected.
But it is clear that idle and frantic humours, actions occasionally unac-
countable and extraordinary, mere dejection of spirits, or even such
insanity as will sustain a commission of lunacy, will not be sufficient
to render a person irresponsible for a criminal act. And it seems that

peremptorily that he would not allow a (g) B. v. Tucket, 1 Cox, 103, Maule, J.

physician to be substituted for a jury. The R. v. Atkins, 1 Cr. App. R. 69.

verdict was for the plaintiff, which pre- (r) R. v. Crouch, 1 Cox, 94.

vented this ruling from being questioned in («) Ante, p. 66.
the court above.

VOL. I. G

82 Of Criminal Responsibility. fBOOK i.

though if there be a total permanent want of reason, or if there be a
total temporary want of it when the offence was committed, the prisoner
will be entitled to an acquittal ; yet, if there be a partial degree of reason,
a competent use of it, sufficient to have restrained those passions which
produced the crime ; if there be thought and design, a faculty to dis-
tinguish the nature of actions, to discern the difference between moral
good and evil ; then, upon the fact of the offence proved, the judgment
of the law must take place (t).

Procedure with reference to insane offenders. — At whatever stage
insanity arises with reference to an alleged offence, its existence is
treated as a bar to giving the verdict or judgment appropriate in the case
of a prisoner of unsound mind.

It is stated by the older authorities that, if a man in his sound memory
commits a capital offence, and before arraignment becomes mad, he
ought not to be arraigned for it, because he is not able to plead to it with
that advice and caution that he ought. And if, after he has pleaded,
he becomes mad, he shall not be tried, as he cannot make his defence.
If, after he is tried and found guilty, he loses his senses before judgment,
judgment shall not be pronounced ; and if after judgment he becomes
of non-sane memory, execution shall be stayed ; for, had the prisoner
been of sound memory, he might have alleged something in stay of
judgment or execution (u).

It is now the practice to bring up the prisoner for arraignment unless
he is certified to be insane in manner provided by the Criminal Lunatics
Act, 1884 («) (47 & 48 Vict. c. 64). By that Act, s. 2, subsect. (1),
'where a prisoner is certified in manner provided in this section
to be insane, a Secretary of State may, if he thinks fit, by warrant (w),
direct such prisoner to be removed to the asylum named in the warrant,
and thereupon such prisoner shall be removed to and received in such
asylum and subject to the provisions of this Act, relating to conditional
discharge, or otherwise, shall be detained therein, or in any other asylum
to which he may be transferred in pursuance of this Act, as a criminal
lunatic (cr) until he ceases to be a criminal lunatic' The effect of removal
under the certificate is to prevent the arraignment or trial of the person
to whom it relates, until he is remitted to prison for trial under sect. 3 (y).

(t) Per Yorke, Sol.-Gen., in Earl Ferrers's place for the reception of the. insane (s. 16).

case, 19 St. Tr. 947, 948. R. v. Allen, The disposal and treatment of criminal

Stafford Lent Assizes, 1807, MS., Lawrence, lunatics is regulated by the Criminal Luna-

J. Att.-Gen. v. Parnther, 3 Br. Ch. Cas. tic Asylums Act, 1860 (23 & 24 Vict. c. 75),

441 ; 29 E. E. 632, per Lord Thurlow. and by ss. 4-16 of the Act of 1884. The

(u) 4 Bl. Com. 23. 1 Halo, 35. See prisons appointed as asylums for criminal

Wood-Renton on Lunacy, 807. lunatics are Broadmoor and Parkhurst.

(«) As to the history of legislation with See Stat. R. and Orders Revised (ed. 1904),

reference to criminal luna.tics, see Wood- tit. ' Lunatic (E).'

Renton on Lunacy, 793. {y) Ex parte Collins, K.B.D. [1899], noted

{w) The warrant may bo signed by an 34 L. J. (newsp.) 132. Under the former

under-secretary of state (s. 15). Act on the same subject (27 & 28 Vict. c. 29)

(x) i.e., as a person for whose safe cus- it was held that a ^a6ea« corpMS would lie to

tody during the King's pleasure. His bring up for trial a person sent by Home

Majesty or the Admiralty is authorised to Secretary's warrant to an asylum after

give order, or a person whom a Secretary committal for trial. R. v. Peacock, 12

of State or the Admiralty has, in pursuance Cox, 21.
of any statute, directed to be removed to a

CHAP. IV.] Trial of Lunatics. 83

This enactment was passed to deal with cases of persons obviously too
mad to be arraigned (z).

By subsect. (2), ' A person shall cease to be a criminal lunatic if he is
remitted to prison, or absolutely discharged in manner provided by this
Act, or if any term of penal servitude or imprisonment to which he may
be subject determines.'

By subsect. (3), 'where it appears to any two members of the Visiting
Committee of a prison that a prisoner in such prison, not being under
sentence of death, is insane, they shall call to their assistance two legally
qualified medical practitioners, and such members and practitioners
shall examine such prisoner and inquire as to his insanity, and after
such examination and inquiry may certify in writing that he is insane.'

Subsect. (4) provides for^an inquiry by the Secretary of State, where
a prisoner under sentence of death appears to be insane.

By subsect. (5) in convict prisons the power of the section shall be
exercised by the Directors of Convict Prisons or one of them (a).

By sect. 3, ' where it is certified by two legally qualified medical
practitioners that a person being a criminal lunatic (not being a per-
son with respect to whom a special verdict has been returned, that he was
guilty of the act or omission charged against him, but was insane at the
time when he committed the act or made the omission) is sane, a Sec-
retary of State, if satisfied that it is proper so to do, may by warrant direct
such person to be remitted to prison to be dealt with according to law.

By sect. 16, ' " prison " means any prison or'place of confinement to
which a person may be committed, whether on remand or for trial, safe
custody, or punishment, or otherwise under any other than civil process,
and " prisoner " means any person so committed.'

TnaL— By the Trial of Lunatics Act, 1883 (46 & 47 Vict. c. 38) (b), s. 2
(1 ), ' where in any indictment or information any act or omission is charged
against any person as an offence, and it is given in evidence on the trial
of such person for that offence, that he was insane so as not to be
responsible according to law for his actions, at the time when the act was
done or omission made, then if it appears to the jury before whom such
person is tried, that he did the act or made the omission charged, but
was insane as aforesaid at the time when he did or made the same, the
jury shall return a special verdict to the effect that the accused was
guilty of the act or omission charged against him, but was insane as
aforesaid, at the time when he did the act or made the omission ' (bb).

(2) ' When such special verdict is found the Court shall order the
accused to be kept in custody as a criminal lunatic, in such place and
in such manner as the Court shall direct till His Majesty's pleasure

(z) See R. v. Dwerryhouse, 2 Cox, 446. s. 2 {post, p. 84), applies to all offences tried

(a) Now the prison commissioners : see on indictment.

Prison Act, 1898 (61 & 62 Vict. o. 41), s. 1. (bb) See R. v. Harding, 1 &■. App. R. 219 :

(6) This Act superseded the provisions 25 T. L. R. 139. When on a criminal appeal

of 39 & 40 Geo. III. c. 94, s. 1, as to acquit- the appellate court consider that the

talon the ground of insanity, and detention appellant was insane, &c., they may quash

of the accuijed or insane during the King's the sentence and make an order as on a

pleasure. The superseded enactment ap- special verdict, 7 Edw. VII. c. 23, s. 5 (4).

plied only to treason, murder and felony. R. v. Jefferson, 72 J. P. 467 ; 1 Cr. App.

The present Act like 39 & 40 Geo. III. c. 94, R. 95.

G 2

84 Of Criminal Responsibility. [book i.

shall be known, and it shall be lawful for His Majesty thereupon and
from time to time, to give such order for the safe custody of the said
person during pleasure, in such place and in such manner as to His
Majesty may seem fit ' (c).

When the questions of fitness to plead and take trial have not been
decided on arraignment they are dealt with by the jury with the question
of criminal responsibility (d).

Under the law prior to this Act, if the jury were of opinion that the
prisoner did not in fact do all the acts necessary in law that the law
requires to constitute the offence charged, supposing the prisoner had been
sane, they must find him not guilty generally, and the Court have no power
to order his detention, although the jury should find that he was in fact
insane. Where, therefore, on an indictment for treason, which stated,
as an overt act, that the prisoner discharged a pistol loaded with powder
and a bullet, the jury found that the prisoner was insane at the time
when he discharged the pistol, but whether the pistol was loaded with
ball or not there was not satisfactory evidence, the Court expressed a
strong opinion that the case was not within the statute (e).

Under the Act of 1883, the jury find that the accused did the act or
made the omission charged as an offence and then proceed to negative
the defendant's responsibility according to law for his actions.

Where a prisoner's counsel set up the defence of insanity for him,
and the prisoner objected to that defence, asserting that he was not
insane, he was allowed to suggest questions to be put to the witnesses
for the prosecution, to negative the supposition that he was insane ; and
the judge, at the request of the prisoner, allowed additional witnesses to
be called on his behalf for the same purpose (/).

Indictment. — If the acts proved to have been done by the prisoner
be such as would have amounted to the crime charged, if they had been
done by a person of sane mind, the grand jury are hound to find a true
bill (g). The acts next to be cited do not apply to the grand jury.

Arraignment. — By the Criminal Lunatics Act, 1800 (h), 39 & 40
Geo. III. c. 94, s. 2, ' if any person indicted for any offence shall be insane,
and shall upon arraignment be found so to be by a jury lawfully impanelled
for that purpose, so that such person cannot be tried upon such indictment
or if upon the trial of any person so indicted, such person shall appear to
the jury charged with such indictment to be insane (^), it shall be lawful
for the Court, before whom any such person shall be brought to be

reapect of where a special verdict is found, (/) R. v. Pearce, 9 C. & P. G67, Bosan-

the statutes applying to persona acquitted quet, J. For numerous unreported deci-

on the ground of inaanity. The enact- sions on the same point, see Wood-Renton

ments then existing are repealed — 3 & 4 on Lunacy, 809.

Vict. c. 54, s. 7, by 47 & 48 Vict. c. 64, ante, {g) R. v. Hodges, 8 C. & P. 195, Alder-

p. 82, and 25 & 26 Vict. c. 86, s. 15, by son, B.

s. 342 of the Lunacy Act, 1890 (53 Vict. (h) Paaaed July 28, 1800. See Had-

c. 5) ; and the detention of such persona ia Geld'a case, ante, p. 66. S. 1 is super-

now regulated by the Acts of 1860 and seded by 46 & 47 Vict. c. 38, a. 2, ante, p. 83.

1884, ante, p. 82, note (x). (i) R. v. Little, R. & R. 430, and MS.,

{d) R. V. Southey, 4 F. & F. 864. 39 & Bayley, J. There is no appeal against a

40 Geo. III. c. 94, a. 2, infra. finding under thia section negativing in-

(e) R. V. Oxford, 9 C. & P. 525 ; 4 St. sanity. R. v. Jefferson, 72 J.P. 467. Ex

Tr. (N. S.) 497, Denman, C.J., Alderson, prarie Emery [1909], 2 K.B. 81-86.

CHAP. IV.] Trial of Lunatics. 85

arraigned or tried as aforesaid, to direct such finding to be recorded, and
thereupon to order such person to be kept in strict custody till His Majesty's
pleasure shall be known ' : ' and if any person charged with any offence
shall be brought before any Court to be discharged for want of prosecution,
and such person shall appear to be insane, it shall be lawful for such
Court to order a jury to be impanelled to try the sanity of such person ;
and if the jury so impanelled shall find such person to be insane, it shall
be lawful for such Court to order such person to be kept in strict custody,
in such place, and in such manner as to such Court shall seem fit, until
His Majesty's pleasure shall be known. And in all cases of insanity
so found it shall be lawful for His Majesty to give such order for the safe
custody of such person so found to be insane during his pleasure, and
in such manner as to His Majesty shall seem fit ' (/).

The prisoner was indicted for assaulting one E. Earl, and beating
her with intent to murder her. The jury found specially that he was
insane at the time of committing the offence, and also at the time of the
trial, and that they acquitted him on account of such insanity, and
the judge ordered him to be kept in custody accordingly. The judges
were unanimously of opinion that sect. 2 applied to all offences, including
misdemeanors, — and that though mere insanity at the time of the offence
would not have warranted an order, yet insanity found at the time of the
trial did warrant it (jj).

By the Criminal Law Act, 1827 (7 & 8 Geo. IV. c. 28, s. 2), if any
person, being arraigned upon or charged with any indictment or informa-
tion for treason, felony, piracy, or misdemeanor, shall stand mute of
malice, or will not answer directly to the indictment or information,
in every such case it shall be lawful for the Court, if it shall so think fit,
to order the proper officer to enter a plea of ' not guilty ' on behalf of such
person ; and the plea so entered ' shall have the same force and effect as
if such person had actually pleaded the same.'

When a prisoner on arraignment stands mute the proper course is.
To swear a jury (k) to determine — 1. Whether the prisoner is mute of malice
or by the visitation of God : 2. Whether he is able to plead : 3. Whether
he is sane or not : on which issue the question is, whether he is of sufficient
intellect to comprehend the course of the proceedings on the trial so as
to be able to make a proper defence (l). In K. v. Thompson (m), where
the prisoner being deaf and dumb, but able to read, the indictment was
handed to him with the usual questions written upon paper, and he wrote
his plea on paper. The jurors' names were then handed to him, with the
question, ' whether he objected to any of them 1 ' and he wrote for answer,
' No.' The judge's note of the evidence of each witness was handed to

(j) See Criminal Lunatic Asylums Act, ant, be insane or not, and a true verdict

1860 (23 & 24 Vict. c. 75), and Criminal given to the best of your understanding, so

Lunatics Act, 1884 (47 & 48 Vict. c. 84), help you God.'

ss. 4-16. (Z) R. V. Pritohard, 7 C. & P. 303, Alder-

(jj) R. V. Little, R. & R. 430, and MS. son, B., where the jury were sworn sepa-

Baylev, J. rately on each of the three issues, approved

{k) In R. V. Goode, 7 A. & E. 536, the in Ex parte Emery [1909], 2 K.B. 81. See
jury were sworn in haec verba, ' You shall R. v. Dyson, 7 C. & P. 305n. ; 1 Lew. 64,
diligently inquire and true presentment Parke, B., where a form of oath for the in-
mate for and on behalf of our Sovereign terpreter is given.
Lady the Queen whether J. G., the defend- (m) 2 Lew. 137.

86 Of Criminal Responsibility. . [book i.

him, and he was asked in writing, if he had any question to put. In E. v.
Whitfield (w), a case of misdemeanor, after a jury had found that the
prisoner was ftiute by the visitation of God, but was of sound mind, his
counsel was permitted to plead not guilty for him, and the trial proceeded
in the usual manner, and the evidence was not interpreted to the prisoner.
Where a prisoner, on being brought up to be arraigned, stands mute or
it appears questionable whether he be sane or not, the proper course is
to swear a jury to try the question, as it is for them and not for the Court
to decide whether the prisoner stands mute of malice, or is insane (o).
Where the verdict is mute of malice, a plea of not guilty is entered, and
the trial proceeds (p).

Where the defendant does not stand mute, but his mental condition
comes into question at the trial, the procedure is regulated by the
Act of 1800, and a jury should be impanelled on arraignment to
determine questions 2 or 3, supra.

If a prisoner have not at the time of the trial, from the defect of
his faculties, sufficient intelligence to understand the nature of the
proceedings against him, the jury ought to find that he is not sane, and
upon such finding he may be ordered to be kept in custody (q).

Where a prisoner, indicted for uttering seditious words, upon arraign-
ment shewed symptoms of insanity, and an inquest was forthwith taken
under the statute, it was held that the jury might form their judgment of
the state of the mind of the prisoner from his demeanor while the inquest
was being taken, and might thereupon find him to be insane without any
evidence being given as to his present state ; and that it was unnecessary
to ask him whether he would cross-examine the witnesses or offer any
remarks or evidence, as that would be a useless prolongation of a painful
proceeding (r). So the jury may take into consideration both the con-
duct of the prisoner in their presence and the evidence given (s).

Where on a prisoner being arraigned, his counsel stated that he was
insane, and a jury was sworn to try whether he was so or not, Williams, J.,
held that the counsel for the prosecution should call his witnesses to shew
that the prisoner was sane and capable of pleading ; as this was not so
much an issue joined as a preliminary inquiry for the information of the
Court (t). But in a similar case, Cresswell, J., held, notwithstanding the
preceding case, that, as the presumption is that a man is sane, if the
prisoner's counsel suggested that he was insane, he must give evidence
of the fact (m).

(n) 3 0. & K. 121, Williams, J. («) B. v. Turton, 6 Cox, 385. It is said

(0) R. V. Israel, 2 Cox, 263. in the old authorities that if a person in a
(p) R. V. Schleter, 10 Cox, 409. As to frenzy happens by oversight, or by means

former procedure, see 1 Hawk. c. 1, s. 4 ; of the gaoler, to plead to his indictment,

R. V. Ley, 1 Low. 239, Hullock, B. ; Bac. and is put upon his trial, and it appears to

Abr. Idiot (B) ; 1 Hale, 33, 35, 36 ; Somer- the Court upon his trial that he is mad, the

villo's case, 1 And. 107 ; 1 Sav. 50, 56 ; judge in his discretion may discharge the

Fost. 46; Kel. (J.), 13 ; 1 Lev. 61 ; 1 Sid. 72. jury of him and remit him to gaol to be

(?) R. V. Dyson, 7 C. & P. 305n. 1 Lew. tried after the recovery of his understand-

04, Parke, B. See a number of unreported ing, especially where any doubt appears

cases collected in Wood-Renton on Lunacy, upon the evidence touching his guilt, and

808, 809. this in favorem vitoe ; and that if there is

(r) R. V. Goode, 7 A. & E. 536. no colour of evidence to prove him guilty,

(s) R. V. Davies [1853], 6 Cox, 320. or if there is pregnant evidence to prove his

[1) R. V. Davies, 3 C. & K. 328. insanity at the time of the fact committed.

CHAP. IV.] Effect of Drunkenness. 87

The prisoner being arraigned on two indictments for murder, and
having with apparent intelligence pleaded to one and decHned to plead
to the other, the plea of not guilty was entered for him with the assent of
his counsel. The case was then opened, and the first witness examined,
and it was then set up by his counsel that he was insane and not in a fit
state to be tried. It was held that the proper time for making that sugges-
tion was before the prisoner pleaded, and that, had it then been made, a
jury should have been impanelled to try the question whether he was
sane and in a fit state to be tried ; but that, as the trial had been begun,
and it would be manifestly inconvenient to recommence the trial of the
collateral issue, and as, moreover, it appeared that the evidence as to the
prisoner's present sanity was very much mixed up with the general ques-
tion of his sanity, it was open to the Court, under the Trial of Lunatics
Act, 1800 («), to take the whole of the evidence, and then leave to the
jury both questions as to the prisoner's state of mind at the time of the
act, and at the time of trial (w).

A person deaf and dumb from four years of age was indicted for
larceny from the person, and not answering when called upon to plead,
the jury found the prisoner ' mute by the visitation of God.' The Court
then ordered a plea of ' not guilty ' to be entered, and the trial to proceed.
A relation of the person, who could in some degree communicate with
the prisoner by means of signs, was sworn to interpret the nature of the
proceedings and the evidence, and the Court assigned counsel to
the prisoner. At the conclusion of the case, after the summing up of
the presiding judge, the jury found the prisoner guilty, but in answer to
a question left to them in the summing up found that the prisoner ' is
not capable of understanding, and, as a fact, has not understood the
nature of the proceedings.' On a case reserved, it was held, that the
above finding shewed that the prisoner was at the time of the trial of
non-sane mind, as he had not sufficient intellect to understand the
proceedings ; therefore, that it was wrong to enter a plea of not guilty,
or allow the trial to proceed : and that the jury should have been
discharged, and an order made to detain the prisoner under sect. 2 of the
Act of 1800 (x).

Drunkenness. — Drunkenness is described by Coke and Hale as
dementia affectata, or acquired madness.

Voluntary Drunkenness. — The older authorities lay it down as a general
rule that voluntary drunkenness does not take away responsibility for any
crime (y) and must be considered rather an aggravation than a defence (z).
This rule is qualified by holding that drunkenness is not a defence to a

then upon the same favour of life and (z) Co. Litt. 247. Beverley's case. 4 Cc.

liberty it is fit that the trial proceed in Rep. 125. Nam omne crimen ehrietas m-

order to his acquittal. Bac. Abr. Idiot (B). cendit et deiegit. Cf. 4 Bl. Com. 26. In

1 Hale, 35, 36. 18 St. Tr. 411, Foster, J. Reniger v. Togossa, 1 Plowd. 1, 19, it is

(v) Ante, p. 84. said, ' if a person that is drunk kills another

(w) R. V. Southey, 4 F. & F. 864. this shall be felony, and he shall be hanged

(x) R. V. Berry, 1 Q.B.D. 447 : 45 for it, and yet he did it through ignorance,

L. J. M. C. 123, followed in Ex parte Emery for when he was drunk he had no under-

[1909], 2 K.B. 81 ; 73 J.P. 284. standing or memory : but inasmuch as

(y) Co. Litt. 247. 1 Hale, .32. Cf. 1 that ignorance was occasioned by his own

Hawk. c. 1, s. 6. R. v. Meade [1909], 1 act and folly, and he might have avoided it,

K.B. 895. he shall not be privileged thereby.'

88 Of Criminal Resfonsihility. [book i.

charge of crime unless it amounts to unsoundness of mind (a), or has
produced in the defendant a mental or physical condition inconsistent with
the inference that acts done by him under the influence of drink were
intentional, where intent or premeditation is of the ess:nce of ths crime ^).
A man who, while suffering from delirium tremens, feloniously wounded
another, was held to have been insane when he committed the act (c),
and the same has been held in a case of temporary mental derangement
caused by drink (d).

In R. V. Meakin (e), a case of maliciously stabbing, Alderson, B.,
said that with regard to the intention, drunkenness might perhaps be
adverted to according to the nature of the instrument used (/). If a
man used a stick, a jury would not infer a malicious intent so strongly
, against him, if drunk, when he made an intemperate use of it, as they
would if he had used a diSerent kind of weapon ; but where a dangerous
j instrument was used, which, if used, must produce grievous bodily
harm, drunkenness could have no efiect on the consideration of the
malicious intent of the party (gr). So drunkenness is often very material
where the question is as to the intent with which an act was done. On
an indictment for inflicting a bodily injury dangerous to life, with intent
to murder, it appeared that the prisoners. were both very drunk at the
time, and Patteson, J., told the jury, that ' although drunkenness is
no excuse for any crime whatever, yet it is often of very great importance
in cases where it is a question of intention. A person may be so drunk
as to be utterly unable to form any intention at all, and yet he may be
guilty of very great violence ' (^)— So where a prisoner was indicted
for shooting with intent to murder, and he was shewn to have been
intoxicated shortly before he fired the shot ; Coleridge, J., told the
jury, that ' drunkenness is ordinarily neither a defence nor excuse for
crime, and where it is available as a partial answer to a charge, it rests
on the prisoner to prove it, and it is not enough that he was excited or
rendered more irritable, 'unless the intoxication was such as to prevent
his restraining himself from committing the act in question, or to take
away from him the power of forming any specific intention ' {i). And
where, on an indictment for attempting to commit suicide, it appeared
that the prisoner had thrown herself into a well, and the witness who

(a) It is immaterial whether the un- upon that case, but afterwards retracted his

soundness is or is not due to habitual or opinion, and there is no doubt that that

voluntary drinking. 1 Hale, 32. case is not law.' R. t'. CarroU, 7 C. & P.

(6) 1 Hale, 32. R. v. Meade [1909], 1 145. But in this case there was evidence

K.B. 895, 898. Though voluntary drunken- of provocation and in R. v. Meade {ubi sup. )

ness cannot excuse from the commission of R. v. Grindley was approved. See cases

crime, yet where, as upon » charge of collected in Wood-Renton on Lunacy, 912n.

murder, the material question is, whether (c) R. v. Davis, 14 Cox, 563, Stephen, J.

an act was premeditated or done only with (d) R. v. Baines, Times, Jan. 1, 1886,

sudden heat and impulse, the fact of the noted in Wood-Renton on Lunacy, 912,

party being intoxicated has been held to be , where Day, J., dissented from R. v. Burrow,

a circumstance proper to be taken into con- 1 Lew. 75, and R. v. Rennie, 1 Lew. 76.

sideration. R. v. Grindley, Worcester Sum. (c) 7 C. & P. 297.

Ass. 1819, MS. Hohoyd, J. In a case of (/) See R. v. Carroll, 7 C. & P. 145, on<e,

murder by stabbing with a bayonet, where note (6).

R. V. Grindley was relied upon, Park, J., in ^ ig) R. v. Meakin, uhi sup.

the presence of Littledale, J., said, ' Highly ~\ (h) R. v. Cruse, 8 C. & P. 541^546. Of.

as I respect that late excellent Judge (Hoi- R. v. Doherty, 16 Cox, 306, Stephen, J.

royd), I differ from him, and my brother (t) R. v. Moukhouse, 4 Cox, 55.
Littledale agrees with me. He once acted

CHAP, iv.j Effect of Drunkenness. 89

proved this, stated that at the time she did so, she was so drunk as not
to know what she was about ; Jervis, C.J., said, ' If the prisoner was
so drunk as not to know what she was about, how can you say that
she intended to destroy herself ? ' (j) So drunkenness may be taken
into consideration in cases where what the law deems sufficient provo-
cation has been given, because the question is, in such cases, whether
the fatal act is to be attributed to the passion of anger excited by the
previous provocation, and that passion is more easily excitable in a
person when in a state of intoxication than when he is sober (k). Where
the question is whether words have been uttered with a deliberate purpose,
or are merely low and idle expressions, the drunkenness of the party
uttering them is proper to be considered (l). But if there is really a
previous determination to resent a slight affront in a barbarous manner,
the state of drunkenness in which the prisoner was, ought not to be
regarded ; for it would furnish no excuse (I). So, upon an indictment
for stabbing, the jury may take into their consideration, among other
circumstances, the fact of the prisoner being drunk at the time, in order
to determine whether he acted under a bona fide apprehension that his
person or property was about to be attacked (m). So on an indictment
for an assault, in considering whether the prisoner apprehended an
assault upon himself, the jury may take into consideration the state
of drunkenness in which he was (n). There is no reported decision in
England on the question whether drunkenness can be considered as
negativing the animus furandi in larceny (o).

The English rule as to the effect of drunkenness on criminal respon-
sibility seems to have been correctly laid down in a recent New Zealand
case, R. v. Matheison (p). The indictment contained two counts : (1) for
stealing tobacco and cigarettes in a store ; (2) for breaking into the
store with intent to steal. The defence raised was that the defendant was
so drunk as not to be responsible. Cooper, J., charged the jury as follows :
' If a man chooses to get drunk, it is his own voluntary act. In cases,
however, where intention is the main ingredient in an offence, drunkenness
may under certain circumstances amount to a sufficient defence. . . .

' In the first count, alleging an actual theft, you must be satisfied that
the prisoner, if he took the cigarettes, did so with a fraudulent intent ;
and in the second count, the intent is the sole ingredient of the alleged
offence. The offence would not be complete under the second count
unless the store was broken into by the prisoner with intent to commit
an offence. ...

' If that intent existed it does not matter whether the prisoner was
drunk or sober, for a criminal intent may exist in the mind of an intoxi-
cated person, and if so his drunkenness is no excuse. But if the drunken-
ness is such as to take away from his act all criminal intent (pp), then his

(?) R. V. Moore, 3 C. & K. 319. Cf. R. R. v. Egan [1897], 23 Vict. L. R. 159, a con-

V. Doody, 6 Cox, 463. viction of a mother for manslaughter of her

{k) R. V. Thomas, 7 C. & P. 817, Parke, infant by overlaying it was quashed on the

B. R. ?'. Pearson, 2 Lew. 144, Park, J. ground that going to bed drunk with the

[I) R. V. Thomas, ubi supra. child, and overlaying it by mischance, was

(m) R. V. Marshall, 1 Lew. 76. R. v. not manslaughter. See 8 Edw. VII. c. 67,

Goodier, ibid., Parke, J. s. 13.

(n) R. V. Garalen, I E. & F. 90, Crowder, J. (p) [1906] 25 N. Z. L. R. 879.

(o) It has been so held in R. v. Corbet (pp) See R. v. Meade [1909], 1 K.B. 895,

[1903], Queensland State Reports, 246. In 898.

90 Of Criminal Responsibility. [book i.

act is not criminal. If the prisoner blundered into the store through
a drunken mistake, and under such circumstances as to indicate inability
to form any definite purpose, and especially to form the purpose of
committing a larceny, then he Ought to be acquitted. If, on the other
hand, although under the influence of liquor, he was not so intoxicated as
to be unable to form such purpose, and knew what he was about, then
his partial intoxication will not excuse him ' (q).

Special provision is made by the Inebriates Act, 1898 (61 & 62 Vict,
c. 60) (r), for dealing with habitual drunkards convicted of offences com-
mitted under the influence of drink, or of which drunkenness was a
contributing cause. The statute appears to proceed on the theory that
drunkenness is not an excuse for crime, but if habitual a ground for
special treatment with a view to seclusion and reform of the offender.

The terms of sect. 1 of the Act shew some uncertainty as to the position
of drunkenness with respect to criminal liability. For the section
provides for the special treatment of persons convicted on indictment
of certain kinds of offences, if ' the Court is satisfied from the evidence
that the offence was committed under the influence of drink, or that
drunkenness was a contributory cause of the offence,' and that the offender
is a habitual drunkard. According to the common law rule above stated,
if the offender was drunk enough he would be acquitted, and the Act of
1898 could not be brought into operation.

Involuntary Drunkenness. — If a person, by the unskilfulness of
his physician, or by the contrivance of his enemies, eat or drink such
a thing as causes frenzy, this puts him in the same condition with any
other frenzy, and equally excuses him (s). This rule has been extended
in Ireland to cases in which such causes as long watching, want of sleep,
or depravation of blood, have reduced a person to such a condition
that a smaller quantity of drink would make him drunk than would
produce such a state if he were in health (t).

III. Compulsion, or Subjection to the Power of Others.— G'eneraZ
rule. — Persons are properly excused from those acts which are not done
of their own free will, but in subjection to the power of others (u) . Actual
physical force upon the person and present fear of death may in some
cases excuse a criminal act. Thus, although the fear of having houses
burnt or goods spoiled is' no excuse in law for joining and marching
with rebels, yet an actual force upon the person and present fear of death

(?) The jury found that the prisoner had cited Wood-Renton on Lunacy, 913, where

blundered into the store under a drunl?en is also cited a suggestion made in E. v.

mistake, and without any intention to Mountain, Leeds Assizes, April, 1888, by

commit an offence, but that while in the Pollock, B., that where insane predispo-

store he appropriated the cigarettes, and sition was the proximate cause of the in-

knew then and there that he was taking the toxioation, the same rule as to irresponsi-

cigarettes of another person. On this find- bility would apply.

ing, a verdict of guilty of larceny was («) 1 Hale, 43. Blaokstone says (4 Com.
directed. Cf. R. o. Nuttall [1908], 25 T. 27), that though a legislator establish
L. R. 76, where it was said that drunkenness, iniquity by a law, and command the sub-
while no excuse for crime, was a matter to ject to do an act contrary to religion and
be considered in fixing the punishment. sound morality ; yet obedience to such

(r) Post, p. 244. Cf. the Children Act, laws, while in being, is a sufficient extenu-

1908 (8 Edw. VII. u. 67), ». 26, post, p. 912. ation of civil guilt before the municipal

(s) 1 Hale, 32. tribunal ; though a different decree will be

(0 R. V. Mary R. [1887], Palles, C.B., pronounced in foro consdentice.

CHAP. IV.] Necessity — Marital Coercion. 91

may form such excuse, provided they continue all the time during which
the party remains with the rebels {v). The rule is sometimes stated that
obedience to usurped power, which would otherwise be treason, is excused
only where actual physical compulsion is used, or directly available (w).
And in general the person committing a crime will not be answerable if
he was not a free agent, and was subject to actual physical force at the
time the act was done. Thus, if A. by force takes the arm of B., in which
is a weapon, and therewith kills C, A. is guilty of murder, but B. is not :
but if it is only a moral force put upon B., as by threatening him with
duress or imprisonment, or even by an assault to the peril of his life, in
order to compel him to kill C, it is no legal excuse {x). Where a mob
forced several persons to go with them, and to take actual part in breaking
threshing machines, and one of them escaped as soon as he could, he
was held not to be guilty of the breaking (y). An idiot or lunatic, or
a child so young as not to be punishable for his criminal act, or any
innocent agent, when made use of for the purpose of committing crimes,
is merely an innocent instrument of the procurer, who is answerable as
a principal [z). As to persons in private relations, neither a cMld nor
a servant is excused for the commission of any crime, by the command or
coercion of the parent or master (a). Sir J. Stephen expresses the opinion
that in most, if not all cases, the fact of compulsion is matter of mitiga-
tion of punishment, and not matter of defence (&).

Necessity. — Closely related to compulsion is the plea which has
been described as necessity (c) or choice of evils {d), which rests not on
physical compulsion, but on the force of temptation, or on disputations
as to whether stress of hunger or desire to save one's own life can justify
theft or homicide. In K. v. Dudley (e), two sailors were held not to be
excused from liability to conviction for murder, who, being adrift in an
open boat, without food, under stress of hunger killed and ate a fellow
sailor.

Coverture. — With a few obvious exceptions, a woman is not deemed
incapable of crime or excused from responsibility of crime by reason of her
sex (/). But the relationship of husband and wife creates in favour of
the wife a position of non-responsibility in certain cases of crime. A
wife cannot be made criminally liable as a principal by receiving
her husband when his offence is treason (</), nor as an accessory after the
fact to a felony committed by her husband {h), nor is she liable, criminally,
for receiving jointly with her husband a traitor or felon (?'), nor for

(v) McGrowther's case, Fost. 13 ; 18 St. (c) Steph. Dig. Cr. L. (6th ed.), art.

Tr. 393, 394, Lee, C.J. R. v. Tyler, 8 C. & 2.5.

P. 616. (d) R. V. Stratton [1780], 21 St. Tr. 1045,

(w) See also Sir H. Vane's case, 6 St. Tr. 1223, acts done by the Council of Madras

119; Kel. (J.), 14. Axtel's case, Kel. (J.), to depose and restrain the Governor, who

13. was acting in an arbitrary and illegal man-

(x) 1 Hale, 43. 1 East, P.C. 225. ner. Discussed in R. v. Dudley, 14 Q.B.D.

{y) R. V. Crutehley, 5 C. & P. 133. at p. 285.

(z) 1 Hawk. c. 31, s. 7. 1 East, (e) 14 Q.B.D. 273.

P.C. 228. Vide post, p. 104, ' Acces- (/) Hawkins (1 P.C. c. 65, s. 8) says a

scries.' woman may be guilty of riot.

(a) 1 Hale, 44, 516. 1 Hawk. ^. 1, s. 14. {g) 1 Hale, 47. 1 Hawk. c. 1, s. 10.

Moore, K.B. 813, Kel. (J), 34. (h) 1 Hale, 48, 621, post, p. 128.

■ (6) Dig. Cr. L. (6th ed.), p. 24n. (i)' 1 Hale, 48, 621, vide post, p. 128.

Of Criminal Responsibility.

[BOOK I.

conspiracy with her husband (j) ; nor can she at common law be convicted
of stealing her husband's goods (k). It is not clear whether these exemp-
tions rest on the theory of identity of person created by marriage, or
upon the theory that the wife's acts in receiving her husband or con-
spiring with him are done in obedience to his will (1), because she is in
the eye of the law sub potestate viri. As regards crimes charged to have
been committed by husband and wife jointly, no presumption arises in
favour of the wife merely from the fact of the conjugal relation; but where
certain forms of crime are committed by a wife in the presence of her
husband, she is presumed to have committed them under his coercion (m) .
It is somewhat difficult to extract from the authorities any definite and
reasoned classification of the crimes to which this presumption applies (n).
It is said that if a wife commits treason or murder (o) in company with,
or by coercion of her husband (p), she is criminally responsible just as if
she were a, feme sole (q), and she is said by Blackstone to be responsible for

{)) 1 Hawk. c. 72, s. 8. Y. B. 38 E. 3, 3.

(k) 1 Hale, 514. The common law has
been to some extent changed by the Married
Women's Property Act, 1882. See post.
Vol. ii. p. 1251, tit. ' Larceny.'

(I) R. V. Manning, 2 C. & K. 903n.

(m) R. V. Baines, 69 L. J. Q.B. 681. Cf.
Brown v. Att.-Gen. of N. Z. [1898], A.C.
234, 237.

(n) The origin of the presumption is dis-
cussed by Sir James Stephen. Dig. Cr. L.
(6th ed.) Appendix, p. 395.

(o) See R. v. Alison, 8 C. & P. 418, infra.

(p) R. V. Buncombe, 1 Cox, 183.

(q) 1 Hawk. c. 1, s. 11. 1 Hale, 45, 47,
48, 516. Kel. (J.) 31. 2 Bl. Com. 29.
' The reason given is the heinousness of
those crimes. I find no decision which
warrants the position in the text, as to
treason, murder or robbery. Somerville's
case, 1 And. 104, which is the only case
where husband and wife have been con-
victed of treason, only shows that a wife
may be convicted of treason with her hus-
band. There Arden and his wife were
charged with procuring Somerville to
destroy the Queen, and both found guilty,
but as none of the evidence is stated, it
may have been that the wife was the insti-
gator, and both properly convicted. In
Somerset's case, which is the only case of a
wife convicted, as well as her husband, as
an accessory to » murder, according to
3 Co. Inst. 50, the Earl and Countess were
indicted as accessories before the fact, to the
murder of Sir T. Overbury, the wife was
arraigned alone first, and pleaded guilty,
and being asked what she had to say why
judgment of death should not be given
against her, she said, " I can much aggra-
vate, but nothing extenuate my fault." (2
St. Tr. 957.) Assuming, therefore, that the
indictment was joint against both, the case
only proves that the wife may properly be
convicted upon her own confession, which
indicates that she was the more guilty

party ; as it is clear she was in this case.
See Hume's Hist. Eng. vol. 6, p. 68, &c.
But as the Earl and Countess were sepa-
rately arraigned, and on different days, and
as the indictment against the Earl, as re-
cited in his pardon (2 St. Tr. 1014), is
against him alone, I infer that the Countess
was indicted alone ; if so, the case is
merely that of a wife pleading guilty to an
indictment charging her alone as accessory,
and unless in such a case she either pleaded
that she committed the offence in company
with her husband (as it seems she may, 1
Hale, 47. Y. B. M. 37 Ed. III. Rot. 34),
or such appeared to be the case upon her
trial, no question as to coercion could arise.
In R. V. Alison, 8 C. & P. 418, Patteson, J.,
mentions an old case, where a husband and
wife, intending to destroy themselves, took
poison together ; the husband died, but the
wife recovered, and was tried for the mur-
der, and " acquitted solely on the ground
that, being the wife of tlie deceased, she
was under his control, and inasmuch as the
proposal to commit suicide had been first
suggested by him, it was considered that
she was not a free agent ; " but I know
from the very learned judge himself that he
guarded against subscribing to the reason
given for this decision. Probably the case
referred to is an anonymous one, Moore,
K.B. 754, where it is said, the question
was, whether it was murder in the woman,
and the recorder caused the special matter
to be found, but no decision is stated, nor
have I been able to find the case elsewhere.
Before Somerville's case, 26 Eliz., and
Somerset's case [1616], I find no exception
to the general rule that the coercion of the
husband excuses the act of the wife, (See
27 Ass. 40, Staundf. P.C. 26, 27, 142. Poul-
ton de Pace Regis, 130. Br. Ab. Coron.
108. Fitz. Ab. Coron. 130, 180, 199.) But
after those cases I find the following excep-
tions in the Books : — Bao. Max. 57, except
treason only. Dalton, o. 147, treason and

CHAP. IV.]

Marital Coercion.

all crimes which, like murder, are mala in se, and prohibited by the law
of nature (r). But this statement is- obviously too wide, as it would include
larceny. C. S. and his wife were indicted for the murder of a boy,
who was bound as a parish apprentice to the husband. It appeared
in evidence that both prisoners had used the apprentice in a most cruel
and barbarous manner, and that the wife had occasionally committed
the cruelties in the absence of the husband. But the surgeon who opened
the body deposed that, in his judgment, the boy died from debility and
want of proper food and nourishment, and not from the wounds, &c.,
which he had received. Lawrence, J., directed the jury, that as the wife
was the servant of the husband, it was not her duty to provide the
apprentice with sufficient food and nourishment, and that she was not
guilty of any breach of duty in neglecting to do so ; though, if the
husband had allowed her sufficient food for the apprentice, and she had
wilfully withheld it from him, then she would have been guilty. But
that here the fact was otherwise ; and therefore, though in foro con-
scienticB the wife was equally guilty with the husband, yet in point of law
she could not be said to be guilty of not providing the apprentice with
sufficient food and nourishment (s). The presumption of coercion of
a wife by a husband as to crimes committed in his presence has been
applied to the following felonies : Burglary {t), robbery (m), larceny and

murder, citing for the latter Mar. Leot. 12
(which I conceive refers to the reading of
Marrow, a Master in Chancery, in the time
of Henry VII. See Willes v. Bridger, 2 B.
& A. 282). 1 Hale, 45, 47, treason, murder
and homicide ; and p. 434, treason, murder
and manslaughter. Kel. (J.), 31, an obiter
dictum, murder only. Hawk. b. 1, c. 1,
s. 11, treason, murder and robbery. Bl.
Com. vol. i. p. 444, treason and murder ;
vol. iv. p. 29, treason, and mala in se, as
murder and the like. Hale, therefore,
alone excepts manslaughter, and Hawkins
introduces robbery, without any authority
for so doing ; and, on the contrary, in R. v.
Cruse, 8 C. & P. 545, a case is cited, where
Burrough, J., held that the rule extended
to robbery. It seems long to have been
considered that the mere presence of the
husband was a coercion (see 4 Bl. Com. 28),
and it was so contended in B. v. Cruse ; and
Bao. Max. 56, expressly states that a wife
can neither be principal nor accessory by
joining with her husband in a felony, be-
cause the law intends her to have no will ;
and in the next page he says, " If husband
and wife join in committing treason, the
necessity of obedience doth not excuse the
wife's offence, as it does in felony.^' Now if
this means that it does not absolutely
excuse, as he has stated in the previous
page, it is warranted by Somerville's case,
which shows that a wife may be guilty of
treason in company with her husband, and
which would be an exception to the general
rule, as stated by Bacon. So also would
the conviction of a wife with her husband
for murder in any ease be an exception to
the same rule. Daltou cites the exception

from Bacon without the rule, and Hale fol-
lows Dalton, and the other writers follow
Hale ; and it seems by no means improb-
able that the exceptions of treason and
murder, which seem to have sprung from
Somerville's and Somerset's cases, and
which were probably exceptions to the rule
as stated by Bacon, have been continued by
writers without adverting to their origin,
or observing that the presence of the hus-
band is no longer considered an absolute
excuse, but only affords a prima facie pre-
sumption that the wife acted by his coer-
cion. See the learned argument of Mr.
Carrington in R. v. Cruse, 8 C. & P. 541,
544, 552. In 1849, G. Manning and his
wife were jointly convicted of murder, but
the question discussed in this note was not
raised, probably because upon the evidence
it was plain that she was the more active
party in the offence. The ease as reported
2 C. & K. 887, and 1 Den. 467, does not
advert to this question, but the charge of
the recorder to the grand jury, 2 C. & K.
903, contains some observations upon it.
See R. V. Smith, D. & B. 553 {post, p. 94),
which is quite in accordance with this note. '
C. S. G.

(r) 4 Bl. Com. 29.

(s) R. V. Squire and wife, Stafford Lent
Assizes, 1799. See Pt. 2 of the Children
Act, 1908, post, p. 912 et seq.

(<) 1 Hale, 32. R. v. Knight, 1 C. & P.
116. R. V. Wharton, Kel. (J.), 37.

(m) As to this offence the authorities are
inconsistent. In 1 Hawk. c. 1, s. H,
robbery is said not to be within the pre-
sumption as to coercion. The contrary
was ruled in a case cited in R. v. Cruse, 8 C.

94 Of Criminal Responsibility. [BOOK I,

receiving stolen goods (v), forgery (w), disposing of forged notes (x), wound-
ing with intent to disfigure (y), sending threatening letters (z).

In E . u . Archer (a) , on an indictment against husband and wife for j ointly
receiving stolen goods, it appeared that a burglary was committed by their
two daughters. The mother and the daughters brought (b) two trunks,
and packed them with a quantity of the stolen property. The trunks were
afterwards found in London (in consequence of a statement made by the
wife, who, when the house was searched had denied that any of the
stolen goods were in it, and made various other false statements), and a
quantity of the stolen property was found concealed in different parts of
the house. On a verdict of guilty being returned against both husband
and wife, it was held, that as the charge against the husband and wife
was joint, and it had not been left to the jury to say whether she received
the goods in the absence of the husband, the conviction of the wife could
not stand, though she had been more active than her husband (c).

In R. V. McClarens (d), on an indictment against husband and wife
for receiving stolen sugar it appeared that the husband received it in the
first instance in the absence of his wife. Some remains of the sugar were
found on searching in a sink in the kitchen, and the wife stated that she
and her daughter had washed all the sugar away, and had burnt the bags
in which it was contained, and that she thought it a hard case that she
and her husband should be at a loss of four or five pounds. Coltman, J.,
told the jury that ' if the husband received the property, knowing it to
be stolen, and if the wife received it from him with the like knowledge,
and with the purpose of aiding and assisting him in the object which he
had in view in receiving it, by turning it to pecuniary profit or in other
like manner, although prima facie she might be supposed to be acting

& P. 545, and in R. v. Torpey, 12 Cox, 45 ; ally inflict any violence upon the prosecutor,
and in R. v. Dykes, 15 Cox, 771, where and it was held that she ought to have been
Stephen, J., directed a wife to be acquitted acquitted. The facts (except as above
on an indictment for highway robbery with stated) were not submitted to the judges,
violence jointly with her husband, the jury As the wife met the prosecutor at the rail-
having found that she had acted under her way station, and induced him to go to a
husband's compulsion. Vide ante, p. 92, lonely spot where her husband wounded
note (q). him (see the note to the case), it is clear she

(w) 1 Hale, 45. 11 Hawk. c. 1, s. 9. 4 was an accessory before the fact, and
Bl. Com. 28. Kel. (J.) 31. According to responsible as such for her acts in the
some, if a wife commits larceny by the absence of her husband, and under the
command of her husband, she is not guilty ; statute then in force, 1 1 & 12 Vict. c. 46,
which seems to be the law if the husband s. 1, she ought to have been convicted as
be present, but not if he be absent at the such accessory.' C. S. G.
time and place of the felony committed. (2) R. v. Hammond [1787], 1 Leach, 447.
1 Hale, 45. It is no ground for dismissing (a) 1 Mood. 143.
an indictment for burglary or larceny as to (6) So in the report ; qucere, bought,
the wife that she is charged with her hus- (c) 'The marginal note is "upon a joint
band and described as his wife, for the charge against husband and wife, of re-
indictment is joint or several according as ceiving stolen goods, the wife cannot,
the facts may appear, and on such an in- properly, be convicted, if the husband is,"
dictment the wife might be convicted and which seems not to be warranted by the
the husband acquitted. 1 Hale, 4(i. case, which, at most, only decides that

(w) R. V. Hughes, 2 Lew. 229. where there is no evidence whatever that

{x) See R. v. Atkinson [1814], Old Bailey the wife was present when the goods were

Jan. Sess., MS. Bayley, J. The conjugal received, or of her conduct when they were

relation was not proved in this case. received, she ought not to be jointly con-

(y) R. V. Smith, D. & B. 553. 'The jury vioted with her husband.' C. S. G.

found that the wife acted under the coercion {d) 3 Cox, 425.
of the husband, and did not herself person-

CHAP. IV.] Marital Coercion. 95

under the coercion of her husband, that was rebutted by the active part
which she took in the matter with the intention above mentioned. But
if the part she took was merely for the purpose of concealing her husband's
guilt, and of screening him from the consequences, then she ought to be
acquitted. A wife cannot be convicted of harbouring her husband, when
he has committed a felony, and the mere circumstance of her attempting
to conceal what may lead to his detection appears to come within the
same principle.'

In E. ?;. Brooks (e), on an indictment against a wife for receiving stolen
goods, it appeared that her husband stole the goods from a shop, and
delivered them into her hands. Whether the articles were stolen at one
or at several times, or delivered to the prisoner at one or at different times,
did not appear. The husband absconded, his house was searched, and
a box taken from the prisoner, after a struggle on her part to retain it.
It contained pawn-tickets which related to the stolen goods. The prisoner
pledged some of the stolen goods, and had made false statements about
them. Parker, B., told the jury that, as her husband had delivered the
stolen articles to the prisoner, the law presumed that she acted under
his control in receiving them; but that this presumption might be re-
butted : if therefore they were satisfied that at the time when the prisoner
received the articles she knew that they were stolen, and in receiving
them acted not by reason of any coercion of her husband, but voluntarily,
and with a fraudulent intention, she might be found guilty ; and on her
being found guilty the questions were reserved, whether the direction was
right, and whether on the evidence there was any case for the jury ; and
it was held that the case failed on both points ; if there had been plenty
of evidence there would have been no case to go to the jury ; but it
appeared that there was no evidence at aU (/).

In R. V. Banks (g), on an indictment for larceny, it appeared that the
goods were found in the house of the prisoner's husband, who was a bhnd
man, and when they were found the prisoner said she had bought them
a long time before. Erie, J., said that if the prisoner had said nothing,
and the goods had simply been found in the house of the husband, there
would have been no evidence to go to the jury, but as she said she bought
the goods, it must be left to the jury to decide whether the goods were in
the possession of the prisoner or her husband ; and he told the jury that
if they were of opinion that the goods were in the possession of the wife
without the consent and control of her husband, they must find her guilty.

In R. V. Wardroper (h) the prisoner was indicted together with her

(e) Dears. 184. her, and he does so in her absence, delivers

(/) 'Thisdecisionwasclearly right on the it to her, and she wears it; or, suppose a

ground that there was no evidence what- thief brings stolen goods to a house, and

ever as to the guilty knowledge or conduct the husband declines to receive them, but

of the prisoner at the time the goods were is induced by the wife so to do, and after-

received. Parke, B., said that, as the wards the husband delivers them to the

prisoner received the goods from her hus- wife ; it cannot be doubted that in these

band, " it is difficult to see how she could be and the like cases she may be convicted,

guilty of this offence." With all deference for the plain reason that she is acting in no

it is perfectly easy to suggest eases where way under his coercion. ' C. S. G.

a wife may be convicted of receiving stolen (g) 1 Cox, 238.

goods from her husband. Suppose she in- {h) Bell, 249.
cites him to steal a diamond necklace for

96 Of Criminal Responsibility. [book i.

husband and P. for burglary and receiving. The jury found P. guilty
of housebreaking, and the wife and her husband of receiving. Part of
the stolen property was found in the hovise where the prisoner and her
husband lived together, and the evidence warranted the jury in convicting
the husband of receiving ; but the only evidence which affected the wife
was that, some time after the robbery, in the absence of her husband,
she produced a quantity of the stolen property, and said it was to be
destroyed, and said she had been changing some foreign money, and
thought she was going to be taken up for it, and asked a young woman
to come down, if she were taken, and say a foreign captain had given her
part of the stolen property. It was contended that there was no evidence
that she received the property either in the absence of her husband or
from any other person than him ; and that if there was evidence for the
jury the question would be whether she received it from him, and if not,
whether she received it in his absence ; but Martin, B., ruled that there
was evidence for the jury, and did not leave either of these questions to
them. On a case reserved, it was held that the questions ought to have
been left to the jury, and that it was perfectly consistent with the facts
that the goods might have been received by the husband at his own house,
and so have come into the possession of the wife through her husband
in a manner that did not render her liable to be convicted («.').

In R. V. Matthews (/), on an indictment against husband and wife
for jointly receiving stolen fowls, it appeared that the fowls were found
in the husband's house, and the wife said she had bought part from
people who came to the house in his absence, and that her husband bought
some at S. market on Wednesday ; and the husband afterwards said that
he was not out of the place where he resided on the Wednesday, and had
bought ' the fowls ' from the person who stole them ; so that the evidence
shewed either a joint receiving by both or a separate receiving by each
in the absence of the other, and the jury found both guilty. On a case
reserved, it was held that, assuming the receiving to have been joint, the
wife was entitled to be acquitted, as the offence was committed in her
husband's presence ; and assuming the receiving to have been separate,
the offence against both was not proved as laid, and that the husband
was rightly convicted, but the wife not (k).

In R. V. M'Athey (I), the jury found a wife guilty of stealing from
the person, and her husband guilty of receiving the property stolen,
knowing it to have been stolen, and also found that the wife acted volun-
tarily and without any restraint on the part of the husband, and that he
received the property from his wife knowing it to have been stolen by
her. It was held, on a case reserved, that the husband was rightly
convicted of feloniously receiving the property from his wife.

In R. t). Bring (m), upon an indictment against husband and wife for

(»') Martin, B., at the trial rightly treated shew any activity on the part of the wife

the indictment as joint and several. See 14 at the time of the receipt. See now 24 &

& 15 Vict. c. 100, s. 14 ; but there was no 25 Vict. c. 96, s. 94, by which persons

evidence of a receipt by the wife in the charged, with a joint receipt of stolen

absence of her husband, so as to bring the property may be convicted of separate

case within that clause. receipts.

ij) 1 Den. 596. (I) L. & C. 250.

(/.) 1 Den. 596. There was nothing to (to) D. & B. 329.

CHAP. IV.] Marital Coercion. 97

jointly receiving stolen goods, the jury found that the wife received
them without the control or knowledge of and apart from her husband,
and that the husband afterwards adopted his wife's receipt ; and it was
held that, upon this finding, the conviction of the husband could not be
supported. The word ' adopted ' might mean that the husband passively
consented to what his wife had done without taking any active part in
the matter, and in that case he would not be guilty of receiving. Or,
it might mean that he did take such active part ; but this rigid con-
struction ought not to be put upon the word ' adopted ' (w). But in R. v.
Woodward (o), where the thief delivered the stolen property to the
prisoner's wife in his absence, and she then paid sixpence on account,
but the amount to be paid was not then fixed ; and afterwards the prisoner
and the thief met, agreed on the price, and the prisoner paid the balance ;
it was held that the receipt was not complete till the price was fixed, and
the money paid, and consequently that the prisoner was rightly convicted
of receiving the stolen property.

Misdemeanors. — As to whether the presumption in favour of coercion
when a wife commits an offence in the presence of her husband extends
to misdemeanor, the authorities are not consistent. They display some
confusion between two distinct questions : (1) whether husband and wife
can be jointly indicted (p) for an offence, and (2) whether if the wife
is indicted, whether severally or jointly, for a misdemeanor committed
in her husband's presence, the presumption of coercion by him arises.

It has been held a wife may be indicted and convicted with her
husband for keeping a bawdy house {q), or gaming house [r).

In R. V. Dicks (s), it appears to have been held by all the judges,
upon an indictment against a married woman, for falsely swearing herself
to be next of kin and procuring administration, that she was guilty of
the offence, though her husband was with her when she took the oath.

In R. V. Cruse (t), a wife was convicted with her husband of assault

(re) It was doubted, whether 14 & 15 bably have as great, nay, a greater, share

Viot. 0. 100, s. 14, applied to successive in the criminal management of the house,

receipts of the whole property stolen. See and that the -offence was such as might

the Statute of Frauds (29 Car. II. c. 3), generally be presumed to be managed by

s. 17, ' except the buyer shall accept part the intrigues of the sex. This case, and

of the goods so sold, and actually receive R. v. Ingram, 1 Salk. 384, were decided on

the same.' No one ever doubted that a motion in arrest of judgment, and the Court

receipt of the whole was within this section, would presume if necessary that the wife

now embodied in s. 4 of the Sale of Goods had acted voluntarily, and the reasons

Act, 1893 (56 & 57 Vict. c. 71). Cf. R. v. given indicate that to warrant conviction

Orris, 1 Cr. App. R. 199 ; 73 J. P. 15. the wife must have acted voluntarily and

(o) L. & C. 122. not under coercion.' C. S. G.

(p) In R. V. Martin, 8 A. & E. 481, hus- (r) 1 Hawk. c. 1, s. 12. R. v. Dixon, 10
band and wife were convicted of obtaining Mod. 335. 1 Salk. 384 on demurrer. ' By the
goods by false pretences. The judgment indictment the husband and wife et uterque
was reversed, but not on the ground of eorum were charged with the offence. The
coercion, or that the indictment was joint. Court did, it would seem, hold the indict-
There is no doubt that in aU misdemeanors ment good because it might be proved that
a wife may be jointly convicted with her the w5e was not under coercion.' C. S. G.
husband, as she may be proved to have (s) [1817] 2 MS. Sum. tit. ' Of Offenders,'
acted voluntarily. and MS. Bayley, J. It does not appear

(q) R. V. WiUiams, 10 Mod. 63. 1 Salk. whether the ratio decidendi was that the

384. And see Baldwin v. Blaokmore, 1 presumption did not apply to false swearing

Burr. 595, 600. ' The ratio decidendi in R. or that it was rebutted by the evidence.

V. Williams was that the wife might pro- [t) 8 C. & P. 541.

VOL. I. H

98 Of Criminal Responsibility. [book i.

upon an indictment for inflicting bodily injury dangerous to life, with
intent to murder (u). A case was reserved by Patteson, J., and fully
argued before all the judges on two points, the second being as to the
application of the presumption as to coercion (v). All the judges were
of opinion that the point as to presumed coercion did not arise, as the
ultimate result of the case was a conviction for misdemeanor (w). This
decision can be explained on the ground that the presumption, if any,
was rebutted by the active part taken by the wife in the acts on which
the indictment was founded, viz., ferocious ill-treatment of her own
natural child. In E. v. Price (x), on an indictment of husband and wife
for a misdemeanor in uttering counterfeit coin, it was ruled that the
wife was entitled to acquittal on the ground that she uttered the coin
in her husband's presence. Mirehouse, Common Serjeant, after consulting
Bosanquet and Coltman, JJ., said, ' the judges agree with me, and I think
the reason of the thing is that the same rule which applies in cases of
felony should apply also to cases of misdemeanor like the present' {y).
And in E. v. Torpey (z), Eussell Gurney, Eecorder, after consulting
Bramwell, B., appears to have ruled that the presumption applied in
favour of a wife jointly indicted with her husband for the misdemeanor
of an assault causing actual bodily harm.

The presumption as to coercion of wife by husband arises only
when the offence in question was committed in the husband's presence (a).
Where a married woman offends alone without the company or coercion
of her husband she is responsible for her offence as much as if she were
a feme sole (b) ; and if it is of such a nature that it may be committed
by her alone, without the concurrence of her husband, she may be indicted
for it without the husband ; the husband need not be included in an
indictment for any offences to which he is in no way privy. Thus a
married woman may be indicted for riot (c) ; for being a common
scold (d) ; for assault and battery (e) ; for forcible entry (/) ; and for
keeping a bawdy house (g) ; and for trespass (h). And she may also
be indicted for larceny of goods of which she is bailee {i), or for receivmg
stolen goods by her own separate act without the privity of her husband ;
or if he, knowing thereof, leaves the house and forsakes her company,

(m) Framed on 7 Wm. IV. & 1 Vict. o. 88, cited. But qu. and see 1 Hawk. c. 81, s. 6,

s. 2 (rep.), which made the offence a capital and post, p. 585, tit. ' Barratry.'

felony. The jury returned a verdict for (c) Dalt. 447.

misdemeanor under the power given by (d) R. v. Foxby, 6 Mod. 213, 239.

7 Wm. IV. and 1 Vict. c. 88, s. 11 (rep.). (e) Salt. 384.

(u) 8 C. & P. 652. ( /) 1 Hale, 21. Co. Lit. 357. In 1 Hawk.

(w) 8 0. & P. 658. u. 64, s. 35, the liability is said to be ' in

(k) 8 0. & p. 19. respect of such actual violence as shall be

(y) HereferredtoaruUngof Bayley, J.,in done by her in person, but not in respect

R. V. ConoUy, MS. Durham Spring Assizes, of what shall be done by others at her com-

1829, an indictment for a misdemeanor in mand, because such command is void.' The

uttering coin. This case is referred to as latter proposition appeai-s not to be now law

Anon. Matthews Dig. Cr. L. 262. See owing to the change in the status of married

the note in 8 C. & P. 21. women.

(z) [1871], 12 Cox, 45, 49. Jg) 1 Hawk. e. 1, s. 13, n. 11 : 1 Bac. Abr.

(o) Ante, p. 92. 294.

(6) 4 Bl. Com. 29. 1 Hawk. o. 1, s 13. (h) 1 Bao. Abr. Baron and Feme IG)

1 Bao. Abr. Baron and Feme (G), where (i) See R. v. Robson L & C qq ■ otiH 4ii

it is said in the notes, that she cannot be & 46 Vict. o. 75. "
indicted for barratry, and Roll. Rep. 39 is

CHAP. IV.] Marital Coercion. 99

she alone shall be guilty as accessory {j) ; and though in a serious offence,
such as sending threatening letters, the husband is an agent in the
transaction, yet, if he is so ignorantly by the artifice of the wife, she
alone is punishable {h).

It is no excuse for the wife that she committed the offence by her
husband's order and procurement, if she committed it in his absence ;
at least it is not to be presumed in such case that she acted by coercion.
S. Morris was tried for uttering a forged order, knowing it to be forged,
and her husband for procuring her to commit the offence ; and it appeared
that her husband ordered her to do it, but that she uttered the instru-
ment in his absence. Upon a case reserved, the judges held that the
presumption of coercion at the time of the uttering did not arise, as the
husband was absent at that time ; and that the wife was properly con-
victed of the uttering, and the husband of the procuring (f). In R. v.
Hughes (m), where the prisoner was indicted for forgery and uttering
Bank of England notes, the principal witness stated, that, in consequence
of a conversation which he had had some time before with the prisoner's
husband, he went to the husband's shop ; that the husband was not
present, but he bought of her three two pound notes, at one pound four
shillings each ; that he paid her for the notes, and was to receive eight
shillings in change ; and before he had received the change, the husband
looked into the room, but did not come in or interfere with the business
further than by saying, ' Get on with you.' After this the witness and
the prisoner returned into the shop where the husband was ; the prisoner
gave him the change, and both the prisoner and her husband cautioned
him to be careful. The counsel for the prisoner objected that she acted
under the coercion of her husband ; that the evidence would have been
sufficient to have convicted the husband, if both the husband and wife
had been upon their trial ; and that therefore the prisoner ought to be
acquitted (w). But Thomson, B., said, ' I am very clear as to the law
on this point. The law, out of tenderness to the wife, if a felony be
committed in the presence of the husband, raises a presumption prima
facie, and 'prima facie only, as is clearly laid down by Lord Hale, that
it was done under his coercion (o) : but it is absolutely necessary that
the husband should in such case be actually present, and taking a part
in the transaction. Here it is entirely the act of the wife ; it is indeed
in consequence of a communication previously with the husband, that
the witness applies to the wife ; but she is ready to deal, and has on
her person the articles which she delivers to the~ witness. There was
a putting off before the husband came : and it was sufficient if before
that time she did that which was necessary to complete the crime. The
coercion must be at the time of the act done, and then the law out of

(j) 22 Ass. 40. Dalt. c. 157. Taylor, 3 Burr. 1679).

(i) Hammond's case, 1 Leach, 447. She (i) K. w. Morris [1814], E. &K. 270. MS.

has also been held indictable for recusancy Bayley, J.

(Hob. 96. Foster's case, 11 Co. Eep. 62. (m) Coram Thompson, B., Lancaster

1 Sid. 410. Sav. 25) ; forestalling (Sid. Lent Assizes, 1813. MS. 2 Lew. 229.

410. 2 Keb. 634 ; but see Bao. Abr. (») He referred to 2 East, P.C. 559. 1

Baron and Feme (G), notes) ; and for Hale, 46. Kel. 37.

selling gin contrary to 9 Geo. II. c. 23 (o) 1 Hale, 516. See E. ^). Cohen, 11 Cox,

(Croft's case, 2 Str. 1120, and see R. v. 99. B. v. Torpey, 12 Cox, 45, ante, p. 98.

100 Of Criminal Responsibility. [book i.

tenderness refers it prima facie to the coercion of the husband. But
when the crime has been completed in his absence, no subsequent act
of his (although it might possibly make him an accessory to the felony
of the wife) can be referred to what was done in his absence.' And
it seems that the correct rule is, that if a felony be shewn to have been
committed by the wife in the presence of the husband, the prima facie
presumption is that it was done by his coercion ; but such presumption
may be rebutted by proof that the wife was the more active party, or
by shewing an incapacity in the husband to coerce. Thus, if the husband
were a cripple, and confined to his bed, his presence would not be
sufficient to exonerate the wife (p).

Where an indictment describes a woman as the wife of a man with
whom she is jointly indicted no evidence is necessary to prove that she
is his wife (q).

If a man and woman are indicted together, and the woman is not
described in the indictment as the wife of the man, the onus of proving
that she is his wife is upon her. Thus, where T. W. and J. J. were indicted
for burglary, and the woman pleaded that she was married to W., and
would not plead to the name of J., the grand jury who found the bill
was sent for, and in their presence, and with their consent, the Court
inserted the name J. W., otherwise .J., not calling her the wife of T. W.,
but giving her the addition of spinster, upon which she pleaded ; and
the Court told her that if she could prove that she was married to W.
before the burglary, she should have the advantage of it : but on the
trial she could not, and was found guilty, and sentenced (r). If a woman
indicted as a single woman pleads to the indictment, that is prima
facie evidence that she is not a feme covert, but is not conclusive (s). In
such a case evidence must be given to satisfy the jury that the prisoners
are in fact husband and wife (t). But cohabitation and reputation
will be sufficient evidence upon such point. W. and M. A. were indicted
for disposing of forged bank notes ; and ' it appeared that they had
lived and passed for man and wife for some months ; upon which it was
put to Gibbs, C.B., whether the woman was not entitled to an acquittal,
and he thought she was ; and counsel for the prosecution at once
acquiesced (u). Where, upon an indictment against a woman for har-
bouring a murderer, knowing him to have committed the murder, it was
probable that a marriage had taken place between the parties, in Ireland,
at a place where the registers were very imperfectly kept, and the parties
had for many years considered each other as man and wife, no evidence
was offered for the prosecution, with the sanction of the Court (v).

[p) R. V. Ci-use, 2 Mood. 53, Tiiidal, C.J. MS. Bayley, J.

(g) R. V. Knight, 1 0. & P. 116, Park, J. (w) R. v. Good, 1 C. & K. 185. Alderson,
(r) R. 0. Jones, Kel. (J.), 37. B., observed, ' If the prisoner went through
(«) R. V. Quinn, 1 Lew. 1. R. v. Wood- the ceremony of marriage, and it should
ward, 8 C. & P. 561, Patteson, J. have turned out that there was some irregu-
{t) R. V. Hassall, 2 C. & P. 434, Garrow, larity in the marriage, nevertheless if it
B. Qumre, whether the proper course for a appeared that she had acted under the sup-
woman so indicted is not to plead the wrong position that she was the wife of the mur-
addition on arraignment, as by pleading to derer, and according to the duty which she
the felony she answers to the name by which considered to be cast upon her, the Court
she is indicted. C. S. G. would have felt it right to have inflicted a
(tt) R. V, Atkinson, 0. B. Jan. Sess. 1814. very slight punishment upon her.' As in

CHAP, iv.] Ignorance and Mistake.

IV. Ignorance and Mistake. — Ignorance of Law.-

of ignorance applies only to ignorance or mistake of fact/ _^

of law. Ignorance of the law of England is not allowed to excuse any one
who is of the age of discretion and compos mentis from its penalties when
broken (w). On an indictment for a common nuisance by keeping a
lottery, the jury returned a verdict of guilty, with a recommendation
to mercy, on the ground that ' perhaps he did not know that he was acting
contrary to law/ This was ruled to be a verdict for the Crown, for ' ignor-
ance of a statute is no excuse if the statute is violated ' {x). The rule
appUes to aliens as well as to citizens ; and it is no defence for a foreigner
charged with a crime committed in England, that he did not know he
was doing wrong, the act not being an offence in his own country («/).
Where, therefore, two Frenchmen were committed on a charge of murder
in a duel, and alleged that they were ignorant of the law of England,
and believed that acting as seconds in a fair duel was not punishable
here, as it was not punishable in France, and that this was a fair duel,
it was held that they were precisely in the same position as if they were
native subjects of England, and the Court refused to bail them (2). And
as a ship, public or private, on the high seas, is, for the purpose of jurisdic-
tion over crimes committed therein, a part of the territory to which the
ship belongs, a person on board an English ship is as much amenable to
the criminal law of England as if he came voluntarily into an English
county, and ignorance of the law is no more an excuse in the one case than
in the other {a).

Ignorance or Mistake of Fact. — When an act is done, the law judges
not only of the act but of the intent with which it was done. An act
done with an unlawful and malicious intent may be criminal, although
without such intent it would be innocent (6). The criminality of the
intent usually depends to a great degree on the state of the knowledge
or belief of the person who did the act. ' At common law an honest and
reasonable belief in the existence of facts, which, if true, would make
the act for which the prisoner is indicted an innocent act, has always been
held a good defence.' . . . ' Honest and reasonable mistake of fact stands
in fact on the same footing as absence of the reasoning faculty (in infants),
or perversion of that faculty as in lunacy ' (c). Thus if a man meaning
to kill or disable a burglar in his own house, by mistake kills one of his

every case, except bigamy and criminal quisque tenehir scire, neminem excusat, is a

conversation, living together as man and maxim as well as of our own law as it was

wife is sufficient evidence of a marriage, of the Roman.' 4 Bl. Com. 27, citing

(Morris v. MiUer, 1 W. Bl. 632, 4 Burr. 2057 ; Plowd. 342a : and Dig. Lib. xxii. tit. 6, c. i.

Woodgate v. Potts, 2 C. & K. 457), there (x) R. v. Crawshaw, 30 L. J. M. C. 58, 64.

seems to have been abundant evidence in {y) R. v. Esop, 7 C. & P. 456, Bosanquet,

this case of a marriage between the parties ; J., and Vaughan, B.

but, assuming that not to be so, it is deserv- (z) Barronet's case, 1 E. & B. 1.

ing of consideration whether, if a woman (a) R. v. Sattler, R. v. Lopez, D. & B.

received and comforted a felon, honestly be- 525.

heving him to be her husband, that would not (6) R. r. Schofield, Cald. 397, Lord Hans-
en ttle her to an acquittal, upon the ground field. Cf. Dig. Lib. xxii. tit. 6, o. 1.
that no guilty intention could exist under (c) R. v. Tolson, 23 Q.B.D. 168, 181,
such circumstances, but, on the contrary, Cave, J., adopted by the Judicial Commit-
she was doing that which she honestly be- tee in Bank of N. S. W. v. Piper [1897],
lieved to be her duty to do. C. S. G. A. C. 383, 390. Cf . R. v. Prince, L. R. 2
(u)) 1 Hale, 42. ' Ignorantia juris, quod C.C.R. 154.

102 Of Criminal Resfonsibility. [Book 1.

own family, he is not criminally responsible {d). And, if a woman marries
again during the life of her first husband, even though he has not been
absent for seven years, she is not indictable for bigamy, if in good faith,
and on reasonable grounds, she beheved her first husband to be dead
when she contracted the second marriage (e). The rule above stated is
expressed in the phrase ' actus nonfacit reum nisi mens sit rea,' which in
substance means that ' the full definition of every crime contains expressly
or by implication a proposition as to a state of mind,' and, if that mental
element is proved to be absent in any case, the crime so defined is not
committed (/). The latest and it would seem a perfectly correct
statement of the law on this subject is : ' There is a presumption that
mens rea, a knowledge of the facts which render the act unlawful, is an
essential ingredient in every criminal offence. That presumption is,
however, liable to be displaced by the words of the statute creating the
offence or the subject-matter with which it deals, and both must be
considered ' (g). The particular mental elements necessary to constitute
particular crimes (h) will be stated in the chapters deaUng with each crime.
In some cases enactments by their form seem to constitute the prohibited
acts into crimes even in the absence of the knowledge and intention
necessary to constitute a mens rea (i). Few, if any, such enactments
relate to indictable offences, and usually they prohibit certain acts in the
interests of the public revenue or private property (/).

Corporations. — At common law a corporation aggregate is regarded
as in the nature of things incapable of treason, felony, or misdemeanors,
involving personal violence, such as riots or assaiilts (Jc), or of perjury (I),
or it would seem offences for which the only penalty is imprisonment or
corporal punishment (m). By the Interpretation Act, 1889 (52 & 53 Vict,
c. 63, s. 2) (w), (1) ' in the construction of every enactment relating to
an offence, punishable on indictment, the expression person shall, unless

(d) Levett's case, Cro. Car. 538. See (i) Sec R. v. Bishop, 5 Q.B.D. 259, where
post, pp. 809, 813. 4 Bl. Com. 27. 1 Hale, a conviction was upheld for contravening a
42, 43. Cf. R. V. Dennis, 69 J. P. 256. lunacy statute by receiving two or more

(e) R. V. Tolson, 23 Q.B.D. 168. lunatics into a place not registered for luna-
(/) Ibid. 187, Stephen, J. See R. v. tics, although the jury specially found that

Prince, L. R. 2 C. C. R. 154, decided on the defendant honestly and reasonably

24 & 25 Vict. c. 100, ». 55 (abduction of a believed the persons in question not to be

girl under sixteen in reasonable belief she lunatics. This decision has been justified

was sixteen or more). The dissentient as based on the scope of the Act to the

opinion of Brett, J., contains strong reason- purpose for which it was passed. R. v.

ing against the conclusions of the majority Tolson, 23 Q.B.D. 108, Stephen, J.

of the Court. See 48 & 49 Vict. c. 69, ss. (j) Such are the Acts against piracy of

5, 7 {post, p. 948), for statutory defence of copyright works, trespass in pui-suit of

reasonable belief that a girl is of or over game, and the sale of food, drugs, intoxi-

the age of sixteen or eighteen. cants, manures, and the accm'acy of weights

(g) Toppen v. Marcus [1908], 2 Ir. Rep. and measures. See Shen-as v. de Rutzen

423, 425, Palles, C.B., adopting in sub- [1895], 1 Q.B. 918. Laird v. DobeU [1906],

stance the opinion of Wright, J., in Sherras 1 K.B. 131. Emery v. Nolloth [1903],

V. de Rutzen [1895], 1 Q.B. 918, 921. The 2 K.B. 269.

question in Toppen v. Marcus was. whether (Ic) Pharmaceutical Society D.London and

under 3 Edw. VII. u. 44, d. 22, a general Provincial Supply Assocn., 5 App. Gas. 857.

dealer was guilty of an offence if on making (I) Wych v. Meal, 3 Peere Wms. 310.

a purchase he innocently entered in his (m) Peark,s, Gunston & Tee, Ltd. v. Ward

books as true, a false name and address [1902], 2 K.B. 1, Channell, J. Hawke v.

given by the seller. E. Hulton & Co. Ltd. [1909], 2 K.B. 93

[h) See Bank of N. S. W. v. Piper [1847], (Lotteries Act, 1823, s. 41).

A.C. 383. (») Re-enacting 7 & 8 Geo. IV. c. 28, s. 14.

CHAP. IV.] Liability of Aliens. 103

a contrary intention appears, include a body corporate.' It would
seem that the common law rule affords a good guide as to the inten-
tion of a statute. At common law, corporations are indictable for
nuisance and breaches of public duty, whether existing by the com-
mon law or created by statute, and whether the breach of duty is
by misfeasance or non-feasance. Corporations are often indicted for
non-repair or illegal obstruction of highways (o), and it would seem
that a corporation aggregate is indictable for defamatory libel (p).

Aliens. — There is no exception in favour of aliens (g) from lia-
bility for offences committed in England or on British ships, either
on the ground of want of allegiance (r), or ignorance of the law of
England (s) . But neither the common law nor the statute law extends
to the acts of aliens outside the King's dominions (0, or outside the
jurisdiction of the Admiralty of England (m), and the diplomatic re-
presentatives of foreign states ^nd their suites .are for the purposes of
criminal law of England regarded as resident in the country of which
they are accredited (ti), and there is some doubt as to the criminal
liability of an alien enemy, e.g., a prisoner of war(w).

(o) R; v. Birmingham & Gloucester (t) In Mortensen v. Peters [1906], 8

Railway, 2 Q.B. 47. And see Att.-Gen. Fraser (Just.), 93, the Scots Court of

V. London & North-Western Railway Justiciary held that under 58 & 59

[1900], 1 Q.B. 78. See post, Bk. xi. Vict. c. 42, s. 10, a, foreigner could be

'Nuisance.' convicted of fishing in a foreign vessel

(p) 5 App. Cas. 857, 870, per Lord at a point outside the territorial waters

Blackburn. of the British Crown. This decision,

( g ) As to statutes binding aliens, see while it may be in accord with the

Y.B. 13 Edw. IV. p. 9, pi. 5. specific terms of the relevant statutes,

(r) The allegiance of an alien who is admittedly not in accord with inter-
is in British territory, is local and tem- national law. See Pari. Deb. (4th ser-
porary, and commensurate with the ies), vol. 169, p. 987.
protection of the English law which he (u) Tide ante, p. 31.
obtf.ins by his presence. See de Jager {v) See Diplomatic Privileges Act,
V. Att-Gen. for Natal [1907], A.C. 326. 1788 (7 Ann. c. 12), post, p. 299.
V^^harton, Conflict of Laws (2nd ed.), {w) See R. v. Molieres, Fost. 188n.
s. 819. R. V. Johnson, 6 East, 583, 593. De

(s) Ante, p. 101. Jager v. Att.-Gen. of Natal, ubi supra.

( 103a )

CANADIAN NOTES.

OF CRIMINAL RESPONSIBILITY.

Justification or Excuse, Common Law Rules Retained. — Code sec.
16.

Infancy.

(a) Infant Under Seven not Responsible. — Code sec. 17.

(6) Under Fourteen, Conditional Responsibility. — Code sec. 18.

A charge of perjury cannot be sustained against a boy under four-
teen years without proof of guilty knowledge of wrong-doing. Code
sec. 18 has not changed the common law, which presumed against guilty
knowledge where the accused was under the age of fourteen years.
R. V. Carvery, 11 Can. Cr. Cas. 331.

Section 18 refers exclusively to mental capacity to judge between
right and wrong. R. v. Hartlen, 2 Can. Cr. Cas. 12.

No one under the age of fourteen years can coromit rape. Sec. 298.

Unsoundness of Mind.

Lunatic not Responsible. — A case may be reserved at the-
instance of the Crown upon a question of law as to whether there was
any evidence of insanity to support the jury's verdict of not guilty
upon that ground. R. v. Phinney (No. 1), 6 Can. Cr. Cas. 469.

Without evidence to go to the jury, the prisoner cannot be acquitted
upon the plea of insanity. If there is in such a case to be any appeal
after a conviction, it must be on the ground that the evidence is so
overwhelming in the favour of the insanity of the prisoner that the
Court will feel that there has been a miscarriage of justice. A new
trial should not be granted if the evidence were such that the jury
could reasonably convict or acquit. R. v. Riel (No. 2), 1 Terr. L.R. 63.

The rule laid down by the Judges in reply to a question put to them
by the House of Lords, in McNaghten's Case, 4 St. Tr. (N.S.) 847,
that the accused was guilty if at the time of committing a crime he-
knew that he was acting contrary to law, was followed and applied iit

CHAP. IV.] Ignorance and Mistake. 103&

E. V. Kiel (No. 2), 1 Terr. L.E. 63, and leave to appeal was refused by
the Privy Council, 10 A.C. 675.

The fact that the accused was so mentally defective that he was
seized with an uncontrollable impulse to do the criminal act, although
cognizant of its nature and quality and that the act was wrong, does
not constitute a defence in law. The King v. Creighton, 14 Can. Cr.
Cas. 349.

Ignorance and Mistake.

Of Law. — Ignorance of law is not a good defence. Code sec. 22 ;
R. V. Brinkley, 12 Can. Cr. Cas. 454; R. v. Mailloux, 3 Pugsley (N.B.)
493 ; R. V. Moodie, 20 U.C.Q.B. 399.

Of Fact. — Ignorance of fact is an excuse where mens rea is an
essential ingredient of the ofEence charged. R. v. Sellars, 9 Can. Cr.
Cas. 153.

Compulsion. — Compulsion by threats is, in certain circumstances,
an excuse of certain oifences. Code sec. 20.

Compulsion of a wife by her husband is not to be presumed because
the offence by the wife is committed in the presence of the husband.
Code sec. 21.

The former common law principle that a wife was exempt from lia-
bility' in certain criminal acts upon the ground of coercion on the part
of her husband, did not apply where the wife had committed the
offence by her husband's order or procurement if she had committed
it in his absence. R. v. Williams, 42 U.C.Q.B. 462. And a plea of com-
pulsion was rebutted by proof that the wife was the more active party,
even when the offence was conimitted in the presence of her husband.
R. V. Williams, 42 U.C.Q.B. 462; R. v. Howard, 45 U.C.Q.B. 346; R. v.
MacGregor, 26 O.R. 115.

Corporations. — A corporation is not subject to indictment on a
charge of any crime, the essence of which is either personal criminal
intent or such a degree of negligence as amounts to a wilful incurring
of the risk causing injury to others. Consequently there is no judg-
ment or sentence applicable to a conviction of a corporation for man-
slaughter. R. V. Great Western Laundry Co., 3 Can. Cr. Cas. 514.

The liability of a corporation to sununary conviction was affirmed
in R. V. Toronto Railway Co., 2 Can. Cr. Cas. 471, and denied in Ex
parte Woodstock Elec. Lt. Co., 4 Can. Cr. Cas. 107.

103c Criminal Responsibility. [book i.

Sections 247 and 252, as to want of care in the maintenance of
dangerous things, do not extend the criminal responsibility of corpora-
tions beyond what it was at common law. Ibid.

Although a corporation may not be guilty of manslaughter, it may
be indicted under Code sec. 222, and possibly under see. 284, for having
caused grievous bodily injury by omitting to maintain in a safe con-
dition a bridge or structure which it was its duty to so maintain, and
this notwithstanding that death ensued at once to the person sustain-
ing the grievous bodily injury. R. v. Union Colliery Company, 3 Can.
Cr. Cas. 523, 4 Can. Cr. Cas. 400, 31 S.C.R. 81.

Under sec. 247 the corporation may be indicted for omitting with-
out lawful excuse to perform the duty of avoiding danger to human
life from anything in its charge or under its control. The fact that the
consequence of the omission to perform such duty might have justified
an indictment for manslaughter in the case of an individual is not a
ground for quashing the indictment. Union Colliery Co. v. R., 4 Can.
Cr. Cas. 400, 31 S.C.R. 81.

There are offences, such as assaults, which it is physically impos-
sible for a corporation to commit, but for such offences as they can
commit, whether of misfeasance or malfeasance, and for which the pre-
scribed punishment is one they can be made to endure, they are as
amenable to the criminal law as are natural persons. R. v. Central
Supply Association, 12 Can. Cr. Cas. 371.

Administering the Law. — For freedom from criminal responsibility
when administering the law, see Code sees. 24, 25, 26, 27, 28, 29, 30, 31,
32, 33, 34, 35, 36, 37 and 38.

Protection from Criminal Responsibility. — Sections 27, 28 and 29
deal only with criminal responsibility while in cases to which sec. 26
applies, the sentence or process is a justification both as to civil and
criminal responsibility.

A peace officer executing a warrant of arrest which he believes to be
good is exempt from criminal responsibility therefor by this section,
although the warrant was bad on its face as following a conviction also
bad on its face. Gaul v. Township of Ellice (1902) , 6 Can. Cr. Cas. 15.

A police officer is not the agent of the municipal corporation which
appoints him to the position and, if he is negligent in performing his
duty as a guardian of the public peace, the corpo:i;0,tion is not respon-
sible for such negligence in provinces where the English common law
applies. McCleave v. City of Moncton, 6 Can. Cr. Cas. 219.

CHAP. IV.] Defective Process. 103(Z

Defective Process. — ^A search warrant affords absolute justification
to the officer executing it if it has been issued by competent authority
and is valid on its face, although the warrant may in fact be bad and
although it be set aside by reason of a failure to comply with legal
requirements. Sleeth v. Hurlbert (1896), 3 Can. Cr. Cas. 197, 25 Can.
S.C.R. 620.

A conviction for resisting a sheriff's officer will be supported not-
withstanding the fact that the date of the judgment under which it
was issued was erroneously stated therein, such an error being an
irregularity only and amendable. E. v. Monkman, 8 Man. R. 509.

And a warrant of commitment which is valid on its face is a justi-
fication to the constable who executes it, although the imprisonment it
directs is not authorized by law. R. v. King, 18 O.K. 566.

(104)

CHAPTER THE FIFTH.

OF PAETIES TO THE COMMISSION OF CEIME.

Sect. I. — Preliminary.

When two or more persons are to be brought to justice for participa-
tion in the same crime, questions arise as to the degree in which they
have participated, i.e., whether they are principal offenders, acces-
sories, or abettors, or whether their participation is innocent so that
the acts done by them do not make them participes criminis. At com-
mon law the question of the exact degree of complicity was of more
importance than under the statutes which now govern trial and pun-
ishment of participators in crime.

To make a man responsible for a crime, whether felony or misde-
meanor, it is not essential that he should be present at the place
where the crime takes effect, if he has, in fact, set in motion the agen-
cies by which the crime is effected. Controversies in respect of venue
or jurisdiction arise when, the crime is initiated in one country and
takes effect in another, or is initiated in one judicial district and takes
effect in another (a). But in case of absence from the scene of the
crime, to make a man responsible as a principal offender, he must
have set in force physical agencies or have employed an innocent
agent.

Innocent Agent. — If a child under years of discretion, a madman,
or any other person of defective mind, is incited to commit a crime,
the inciter is the principal ex necessitate, though absent when the thing
was done (&) . In point of law, the act of the innocent agent is as much
the act of the procurer as if he were present and did the act himself (c).
Where the prisoner had induced a child of the age of nine years to
take money from his father's till and give it him, Wightman, J., left
it to the jury to say whether the child was an innocent agent, that is,
whether he knew that he was doing wrong or was acting altogether
unconsciously of guilt and at the dictation of the prisoner (d).

The rule also applies in the case of libels published through
the agency of the post office (e), or the transmission of poison
by the hands of a person of any age, who is ignorant of its
nature (/) and for the purpose for which he is to deliver it
to the person intended to be killed or injured, or the uttering
of a forged document through a person who does not know that
it is forged(sr). It is not essential that the principal should be
present at the place where the crime takes effect. This is obvious in

{a) Discussed ante, p. 52. (e) R. v. Johnson, 7 East, 65.

(6) Fost. 349. Kel. (J.) 52. (/) Fost. 349.

(d) R. «. Manley, 1 Cox, 104.

CHAP, v.] Of Innocent Agents. 105

the cases of crimes such as libels and false pretences and threatening
letters transmitted by post, and also applies in cases where poison is
placed for another person, and is taken by him in the absence of the
person who placed it Qi).

A prisoner went to a die-sinker and ordered four dies of the size of a
shilling to be made, stating them to be for two whist clubs. Before
making them, the die-sinker communicated with the officers of the Mint,
who directed him to execute the prisoner's order, which he did by making
the first and third dies, and from these counterfeit shillings could be
coined. It was held that the prisoner was the principal, as the die-
sinker was an innocent agent (/). Where the prisoners applied to an
artist to engrave a copy of the coupons of the Netherlands Bank, and
the artist suspecting that there was an intention to defraud, communicated
with the Dutch consul, and under his direction, employed persons to
engrave the plate in pursuance of the orders given him : it was held that
the artist was an innocent agent (k).

B. in London, and S. on the Continent, were engaged in planning the
forgery of a plate, as appeared by letters which had passed between them.
The order for the plate was given by B. to an innocent agent in England
before S. came to England. On his arrival he and B. went to the manu-
facturer, and the plate was given to them. It was contended that B.
was the principal, and that S. was only an accessory before the fact, and
that it was the same as if B. had engraved the plate, and, if so, S. was
only an accessory. Tindal, C.J., said: ' That reasoning would be good
if the actual maker had been a guilty party, because he would stand in
a different position to those who had counselled him to the commission
of the crime. But it altogether fails where the immediate agent is an
innocent one. Then, those who have plotted and arranged that he
should do the particular act are themselves principals. Suppose the
prisoners had been both abroad, and that, having planned the forgery,
one of them had given the order for the plate by letter, can it be doubted
that they would be indictable as principals ; and can it make any differ-
ence that one of them is in this country ? It seems to me, then, that
the circumstance of the immediate agent in this forgery being an innocent
person renders the rule of law as to principal and accessory inapplicable.'
And Alderson, B., said : ' If a person does an act of this kind, with a
guilty intent, he is not the agent of any one. If he does it innocently,
he is the agent of some person or persons ; and if two have agreed to
employ him, he is the agent of both. In this case, therefore, it is a ques-
tion for the jury whether the prisoners were jointly acting in procuring
this plate to be made. If they were, then the engraver acts on behalf
of both. It makes no difference whether they were in England or else-
where ; when they have once agreed to do the thing, the act of one is
the act of all, although the rest be absent at the time ' {I).

The prisoner was indicted for forging a receipt for hi. in the name of
W. S., who had gone to America ten years before. On receipt from the

(h) Post. 349. Steph. Dig. Cr. Law {k) R. v. Valler, 1 Cox, 84, Gurney, B.,

(6th ed.), 30. Kel. (J.) 52. 4 Co. Rep. and Wightman, J.
446. (0 R. V. Bull, 1 Cox, 281. Ante, p. 52.

(?) R. V. Bannen, 2 Mood. 309.

106 Of Parties to the Commission of Crime. [book i.

prisoner of a letter addressed to M. S., M. S. sent a letter containing a post-
office order, directed to W. S. This letter was opened by B., who wrote
to the prisoner and informed him of the receipt of the post-office order.
The prisoner wrote a letter in reply enclosing one purporting to come from
W. S., desiring B. to obtain payment of the post-office order, and sajring
that he was ' at liberty to sign his hand,' if necessary, to the post-office
order. In consequence of this letter B. signed the name ' W. S.' to the
post-office order, and received the money and transmitted the balance,
after paying the expenses, U. lis. M., to the prisoner. B. stated that
he considered the letter gave him sufficient authority to sign the name
' W. S.,' which he wrote in his ordinary hand, without imitating any
person's signature. It was urged that in order to constitute forgery
the writing of the name by an innocent agent must be as if it were the
act of the person whose name was written. Here the signing was as an
agent, and the prisoner had only been guilty of giving an authority,
which he had no right to give. B. did not sign as W. S., but on the ground
that he was authorised to sign W. S.'s name for him. Secondly, it was
not sufficient to give an innocent agent ' Hberty ' or licence to do an act
to make the party giving such licence a principal, for a bare permission
would not make a man a principal (m). Piatt, B., after consulting Pollock,
C.B., ' We agree in thinking that as B. was an innocent agent, the sign-
ing the name W. S. by him is just the same as if it had been signed by the
prisoner himself, and that it is therefore a forgery. We also think that
the terms of the letter, which induced B. to sign, are quite immaterial,
as it was in consequence of that letter that the name was written' {n).

But if a person who receives and utters a note knows that it is forged,
the person who gave it wiU not be punishable as a principal (o) ; and
where a person, having incited another to lay poison, is absent at the
time of laying it, he is an accessory only, though he prepared the poison,
if the person laying it is amenable as a principal ; but is punishable as a
principal if the person laying the poison is not so amenable (p).

Sect. II. — Principals and Accessories in Felony.

All persons who take any part in the commission of a felony are in
construction of law felons {q) : but at common law a distinction is drawn
in the case of felony between — (i.) Principals in the first degree; (ii.)
principals in the second degree, or accessories at the fact ; (iii.) accessories
hefore the fact ; (iv.) accessories after the fact. This distinction was of
importance with reference both to procedure and punishment : but
much of the earlier case law on the subject has been rendered obsolete by
legislation.

(i.) Princifdls in the First Degree.

1. Principals in the first degree are those who have committed the
fact with their own hands or through an innocent agent {r), whether
the fact be a complete crime or an incitement to commit crime.

(to) R. v. Haddock, 2 Russ. 0. & M. (o) R. v. Scares, R. & B. 25

p. 946 (4th ed.). 1 Ruas. C. & M. 57 (4th (j,) Fost. 349.

ed.), and 1 Hale, 616, were cited. (q) Post. 417.

(») R. V. Clifford, 2 C. & K. 202. (r) Vide ante, p. 104.

Chap, v.] Of Principals and Accessories in Felony. 107

2. In treason and in misdemeanor all persons participating are liable
as principals. {Vide post, p. 138.)

The first count of an indictment charged the prisoners with uttering
a counterfeit sixpence to A., and on the same day uttering another to B. ;
the second count with uttering to C. ; and a third count with uttering
to D. The prisoners were in a town together all the day in question,
and in the evening quitted a public-house together, having first changed
their clothes for the purpose of disguise. Each of them uttered three
bad sixpences, made in the same mould, and of the same metal, to shop-
keepers Hving within a short space of each other, and the prisoners were
found together immediately afterwards with counterfeit money on their
persons, but there was no proof that they were together at either of the
utterings. There were other facts to shew a community of purpose.
On these facts, Erskine, J., at first called on counsel for the prosecution
to elect against which of the prisoners he intended to proceed. It was
then contended that if the prisoners jointly provided themselves with
the coin for uttering, and shared the proceeds afterwards, they were
jointly guilty of each act of uttering ; that in misdemeanor there being
no accessories, the acts which would make them accessories before the
fact in felony made them principals on this charge, and that at all events
one of them could be convicted of the two utterings on the same day,
and the other of the single uttering, of which he was guilty, on one of the
other counts. Erskine, J., then directed the trial to proceed, and in
summing up told the jury, that if two persons, having jointly prepared
counterfeit coin, planned the uttering, and went on a joint expedition,
and uttered, in concert and by previous arrangement, the different pieces
of coin, then the act of one would be the act of both, though they might not
be proved to be actually together at each uttering. It might be different
if, having possession of the counterfeit coin, they shared it between them,
and each went his own way, and acted independently of the other. If
they thought they were acting in concert in the utterings charged, they
should convict on the whole indictment. If they thought they were
uttering independently of each other, they might convict one of the two
utterings on the first count, and the other on the other counts (s).

So, where, on an indictment against G. and J. for uttering counterfeit
coin, it appeared that the uttering was by J. in the absence of G. ; but
that both were together before the uttering, under circumstances which
left no doubt of their joint engagement in a common purpose of uttering
base shillings and sharing in the proceeds, Talfourd, J., directed the
jury that if they thought G. was engaged on the evening in question with
J. in the common purpose of uttering counterfeit shillings, having one
stock of such coin, for their mutual benefit ; and if, in pursuance of such
purpose, J. uttered the shilHng, they ought to find G. guilty, subject to
the question of law whether the actual presence of G., in or so near the
neighbourhood as to amount to association in the very act, was necessary
to support the charge. The jury found both guilty ; but, in deference
to the authority of E. ■;;. Else (t) and R. v. Page (m), the question whether

(«) R. V. Hurse, 2 M. & Rob. 360. (u) 2 Mood. 290.

(i) R. & R. 42.

108 Of Parties to the Commission of Crime. [book i.

Gr. was properly convicted was reserved for the opinion of the judges ;
who were unanimously of opinion that he was rightly convicted, on the
ground that, at common law, persons who in felony would have been
accessories before the fact, in misdemeanor were principals, and there-
fore K. V. Else and E. v. Page were wrongly decided {v).

(ii.) Principals in the Second Degree.

Principals in the second degree are those who were present, aiding and
abetting at the commission of a felony. They are often termed aiders
and abettors, and sometimes accomplices : but the latter appellation will
not serve as a term of definition, as it includes all the participes criminis,
whether they are considered in strict legal propriety as principals" in
the first or second degree, or merely as accessories before or after the
fact (w).

Presence actual or constructive. — A person may be a principal in
the second degree in felony even if by reason of age or sex physically
incapable of being a principal in the first degree (x). In order to render
a person a principal in the second degree, he must be present aiding and
abetting at the fact, or ready to afford assistance if necessary, as when
one commits a murder, and another keeps watch and ward at some con-
venient distance (y). But a person may be present, and, if not aiding
and abetting, be neither principal nor accessory : as, if A. happens to be
present at a murder and takes no part in it, nor endeavours to prevent
it, or to apprehend the murderer, this course of conduct will not of itself
render him either principal or accessory (z).

The presence need not be a strict actual immediate presence, such a
presence as would make him an eye-witness or ear-witness of what passes,
but may be a constructive presence. So that if several persons set out
together, or in small parties, upon one common design, felonious or
unlawful in itself, and each takes the part assigned to him ; some to com-
mit the fact, others to watch at proper distances and stations to prevent
surprise, or to favour, if need be, the escape of those more immediately

{v) R. V. Greenwood, 2 Den. 453, over- length it became settled law that aU persons

ruling R. v. Hayes, 2 Cox, 68, and R. v. present, aiding and abetting, when a felony

West, 2 Cox, 237. R. v. Skerritt, 2 C. & P. is committed, are principals in the second

427, appears also to fall with this ruling. degree. Coal-heaver's case, 1 Leach, 66.

(w) Fost. 341. The course and order of And see Fost. 428, and R. v. Towle, R. & R.

proceeding against offenders founded upon 314. This law was by no means settled till

the distinction between principals in the after the time of Edward III. ; and so late

first degree and principals in the second as the first of Queen Mary a chief justice

degree, appears to have been unknown to of England strongly doubted of it, though

the most ancient writers on our law, who indeed it had been sufl&oiently settled

considered the persons present aiding and before that time.

abetting in no other light than as accessories {x) 1 Hale, 636. R. v. Eldershaw, 3 C. &

at the fad (Fost. 347). But as such acoes- P. 396, boy under fourteen principal in

scries they were not liable to be brought to second degree in rape. R. v. Lord Balti-

trial till the principal offenders had been more [1768], 4 Burr. 2179. R. v. Ram, 17

convicted or outlawed, the course of jus- Cox, 609, women principals in second

tice was frequently arrested by the death degree in rape.

or escape of the principal, or from his re- (ij) 1 Hale, 615. Fost. 350. 4 Bl. Com.

maining unknown or concealed. With a 34.

view to obviate this mischief the judges by (z) 1 Hale, 439. Fost. 350. '

degrees adopted a different rule : and at

CHAP, v.] Of Princifols and Accessories in Felony. 109

engaged ; they are all, provided the fact be committed, in the eye of
the law present at it ; for it was made a common cause with them ; each
man operated in his station at one and the same instant, towards the
same common end, and the part each man took tended to give counte-
nance, encouragement and protection to the whole gang, and to insure
the success of their common enterprise (a). But there must be some par-
ticipation ; therefore if a special verdict against a man as a principal
does not shew that he did the act, or was present when it was done, or
did some act at the time in aid which shews that he was present, aiding
and assisting, or that he was of the same party, in the same pursuit, and
under the same expectation of mutual defence and support with those
who did the fact, the prisoner cannot be convicted (6). So, if several are
out for the purpose of conamitting a felony, and upon alarm and pursuit
run different ways, and one of them maim a pursuer to avoid being taken,
the others are not principals in that maiming (c). And it has been held
not sufficient to make a man a principal in uttering a forged note, that
he came with the utterer to the town where it was uttered, went out with
him from the inn where they put up a little before he uttered it, joined
him again in the street a short time after the uttering, and at a distance
of 150 yards from the place of uttering, and ran away when the utterer
was apprehended (d). In E. v. Brady (e), on an indictment for forging
and uttering a cheque, Graham, B., is reported to have said : ' It has
frequently been held that what would amount to a constructive presence
at common law wiU not be sufficient upon an indictment under a statute.
A case under this statute occurred before me at Derby (/). Two persons
went in concert to utter a forged note ; one went into a shop to utter it,
whilst the other remained at some little distance in the street ; it was
objected that the latter was not liable as a principal. I saved the point ;
and the judges were of opinion that the utterer only was liable ' (e). The
general rule applies to offences by statute as well as at common law, viz.,
that all present at the time of committing an offence are principals,
although one only acts, if they are confederates, and engaged in a common
design, of which the offence is part (g). And where three persons were
charged with uttering a forged note, other acts done by aU of them jointly,
or by any of them separately, shortly before the offence, may be given in
evidence to shew the confederacy and common purpose, although such
acts constitute distinct felonies (h). And what was found upon each may
be proved against each to make out such confederacy, although it were
not found until some time after the commission of the offence (i).

K. and M. were indicted for stealing oats. K. was hired by the
prosecutor to draw oats in sacks from a vessel to the prosecutor's ware-
house, and M. was employed by the prosecutor to load the sacks into

(a) Fost. 350, 2 Hawk. c. 29, ss. 7, 8. (e) 0. B. June, 1813. 1 Stark. Cr. PI.
See R. V. Howell, 9 C. & P. 437, Little- 84n.

dale, J. R. v. Vanderstein, 10 Cox, 177 (/) This seems to be R. v. Brady, ubi

(It.). supra.

(b) R. V. Borthwick, 1 Dougl. 207. (g) R. v. Tattersal, East. T. 1801. MS.

(rf) R. V. Davis & Hall, East. T. 1806. (i) Id. ibid.

MS. Bayley, J. ; and R. & R. 113.

110 Of Parties to the Commission of Crime. [book i.

trams belonging to K. on which they were carried. Whilst one load
was being conveyed to the warehouse, K. said to M., ' It's all right/ and
shortly afterwards M. emptied some oats out of two sacks which were
on a tram close to the vessel, into a nosebag which he then placed under
the tram. K., at this time, was absent with a load, but returned in a few
minutes to the vessel with an empty tram, took the nosebag from under
the tram, where M. had placed it, and put it on the tram, and drove off
with it, M. being, at the time K. took the nosebag from under the tram,
on the vessel, which lay close to the tram, and within three or four yards
of K. It was submitted that K. was entitled to be acquitted, as he was
not present at the time when the oats were stolen. Maule, J., said : ' I
think the evidence shews that this was all one transaction, in which both
concurred ; and I think both having concurred, and both being present
at some parts of the transaction, both may be convicted ' {j).

Upon an indictment for larceny against H. and G., it appeared that
Gr. was the foreman of the prosecutor, a canvas manufacturer, but had no
authority to sell any yarn. On one occasion H. sent his servants to the
warehouse of the prosecutor to bring away yarn, and G. delivered with
the yarn an invoice made out in the name of the prosecutor. Subse-
quently, H. sent two of his men to the warehouse of the prosecutor, and,
on arriving, they found H. and G. there. Some yarn was pointed out
as the yarn which they were to take to H.'s premises : and they there-
upon, in the presence of H. and G., carried away the yarn in question.
When H. was charged he produced the invoice which G. gave him on
the first occasion, and stated that, except on that occasion, he had had
no dealings with him. It was submitted that H. was only guilty of
receiving the yarn, knowing it to have been stolen, but Coltman, J.,
held that if H. knew that in the transaction in question G. was, in fact,
committing a felony, he, as well as G., was guilty of the same felony ;
and, therefore, the question for the jury was whether, at the time of the
pretended sale by G., H. knew that G. was exceeding his authority and
defrauding his master {k).

Going towards the place where a felony is to be committed in order
to assist in carrying off the property, and assisting accordingly, will not
make the party a principal if he was at such a distance, at the time of the
felonious taking, as not to be able to assist in it. The prisoner and J. S.
went to steal two horses ; J. S. left the prisoner half a mile from the place
in which the horses were, and brought the horses to him, and both rode
away with them. Upon a case reserved, the prisoner was held to be an
accessory hefore the fact only, not a principal, because he was not present
at the original taking (Z). Where a servant let a person into his master's
house, in order that he might steal his master's money, and he continued
in the house till the robbery, but the servant left the house before the
robbery was committed, it was held that the servant was an accessory
before the fact (m). On an indictment for stealing in a dweUing-house,
it was proved that a servant had unlocked the door of the house, in order

(j) R. V. KeUy, 2 0. & K. 379. Maule, J., & R. 421.

refused to reserve the point. (m) R. v. TuokweU, 0. & M. 215, Cole-

(k) R. V. Hornby, 1 C. & K. 305. ridge, J. It is not stated how long before

(I) R. V. Kelly, MS. Bayley, J., and R. the theft the servant left.

CHAP, v.] Of Principals and Accessories in Felony. Ill

that another person might get in and steal the property, which he did
ahoiM twenty minutes after the servant had left the house. It was contended
that, as it was clear that if the servant had been indicted for house-break-
ing and stealing he might have been convicted (n), that shewed that he
was guilty of stealing the money, for that could not depend upon the form
of the indictment. But it was held that the servant was only an acces-
sory before the fact to the offence charged in the indictment (o). Where
three prisoners were jointly indicted for maUciously wounding with
intent to maim, &c., and one of them did not come up and take any part
until the wound had been inflicted by the others, it was held that the
latter only could be convicted, though the former kicked the prosecutor
several times after he came up (p). So, if two prisoners go to a house,
intending to commit a theft in it, and one enters first and is apprehended,
and then the other enters and commits the theft, the former is only an
accessory before the fact (5').

But where a man committed a larceny, in a room of a house, in which
room he lodged, and threw a bundle containing the stolen property out
of the window to an accomplice who was waiting to receive it, the judges
came to a different conclusion. The accomplice was indicted and con-
victed as a receiver ; and the learned judge before whom he was tried
was of opinion, that as the thief stole the property in his own room, and
required no assistance to commit the felony, the conviction of the accom-
plice as a receiver might have been supported, if the jury had found
that the thief had brought the goods out of the house, and delivered
them to the accomplice ; but as the jury had found that the thief threw
the things out of the window, and that the accomplice was in waiting
to receive them, he thought the point fit for consideration. And the
judges were of opinion that the accomplice in this case was a principal,
and that the conviction of him as a receiver was wrong (r).

So, where on an indictment against G. for steaHng, and H. for receiv-
ing pork, it appeared that the prisoners went together to the prosecutor's
warehouse, and G. went into the warehouse and took the pork out of a
tub, and brought it out of the warehouse and gave it to H., who had
remained on the outside, and who was not in a position to see what G.
did in the warehouse, but was sufficiently near to have rendered him
aid in case he had been taken into custody ; that is to say, the evidence
was sufficient to have convicted him as a principal in the second degree ;
and the jury having found H. guilty, upon a case reserved upon the
question whether a person who was a principal in the second degree
could, under the above circumstances, be convicted as a receiver of the
goods stolen, the judges were unanimously of opinion that he could not ;
and, therefore, the conviction of H. was wrong (s).

(re) R. V. Jordan, 7 C. & P. 432. J., and RoHe, B.

(o) R. V. Jefferies & Bryant, Gloucester (r) R. v. Owen, 1 Mood. 96.

Spr. Ass. 1848. CressweU and Patteson, (s) R. v. Perkins, 2 Den. 459. ' This case

JJ., 3 Cox, 85, MSS. C. S. G. The decision must not be taken to decide that a principal

seems to turn on the length of the interval cannot, under any circumstances, be a re-

between the departure of the servant and ceiver, as the marginal note would seem to

the arrival of the thief. indicate. If a principal were to deUver the

(p) R. V. M'Phane, C. & M. 212 ; Tin- goods to another, and afterwards at a dis-

dal, C.J. tance from the place where the felony was

(j) R. V. Johnson, C. & M. 218, Maule, committed were to receive them again.

112 Of Parties to the Commission of Crime. [book i.

An indictment charged S. with stealing 18s. 6d., and C. with receiving
the same. S. was a barman at a refreshment bar. C. went up to the
bar, called for refreshments, and put down a florin. S. served C, took
money from his master's till in the presence of C, and gave to C. 18s. 6d.
change for the florin, which C. pocketed. There was evidence of recogni-
tion and common purpose between S. and 0. S. was convicted of stealing,
and C. of receiving the 18s. 6d. It was held, that upon the evidence,
the jury should have been directed that they might convict C. as a
principal in the second degree, and that he was not properly convicted
as a receiver (t).

Common Purpose. — In order to make a person who is present when
a felony is committed a principal in the second degree, there must be a
community of purpose with the party actually committing the felony, at
the time when the felony is committed. One count charged H. and M.
with steaHng from the person ; another charged them with feloniously
receiving the stolen property. H. was walking by the side of the
prosecutrix, and M. was seen just previously following behind her. The
prosecutrix felt a tug at her pocket, found her purse was gone, and, on
looking round saw H. behind her, walking with M. in the opposite direction
and saw her hand something to M. The jury were directed that, if they
did not think, from the evidence, M. was participating in the actual
theft, it was open to them on these facts to find him guilty of receiving.
The jury found H. guilty of stealing and M. guilty of receiving ; and it
was held that the direction was right, as to make M. a principal in the
second degree there must have been a community of purpose with H.
in the actual stealing (u).

And if several act in concert to steal a man's goods, and he is induced
by fraud to trust one of them in the presence of the others with the pos-
session of the goods, and then another of the party entices the owner
away, in order that the party who has obtained such possession may
carry the goods off, all will be guilty of felony, the receipt by one, under
such circumstances, being a felonious taking by all (v). So, where a
prisoner asked a servant, who had no authority to sell, the price of a
mare, and desired him to trot her out, and then went to two men, and
having talked to them, went away, and the two men then came up and
induced the servant to exchange the mare for a horse of Uttle value, it
was held that if the prisoner was in league with the two men to obtain
the mare by fraud and steal her he was a principal (w).

If a murder is committed in prosecution of some unlawful purpose,
even a bare trespass, all persons who went to give assistance, if need were,
in carrying the unlawful purpose into execution, are guilty of murder.
But this applies only where the murder is committed in prosecution of
some unlawful purpose, in which the combining parties united, and for
the effecting whereof they are assembled ; for unless this appears, though

there can be no doubt that he might be (u) R. v. Staudley, MS. Bayley, J., and

convicted as a receiver.' C. S. G. R. & R. 305. R. v. County, MS. Bayley, J.

(() R. V. Coggins, 12 Cox, 517 (C. C. R.). As to Habihty for larceny by aiding and

(u) R. V. Hilton, 1 Bell, 20, referred to abetting as ring dropping, see R. v. Moore,

in R. V. Coggins as R. v. M'Ewin. In R. v. 1 Leach, 314.

Coggins, Blackburn, J., approved the direo- {w) R. v. Sheppard, 9 C. & P. 121, Cole-

tion in R. v. Hilton. ridge, J.

CHAP, v.] Of Principals and Accessories in Felony. 113

the person giving the mortal blow may himself be guilty of felonious
homicide, yet the others who came together for a diSerent purpose will
not be involved in his guilt {x). Thus, where three soldiers went together
to rob an orchard : two got upon a pear-tree, and the third stood at the
gate with a drawn sword in his hand ; and the owner's son coming by
collared the man at the gate, and asked him what business he had there,
whereupon the soldier stabbed him ; it was ruled to be murder in the
man who stabbed, but that those on the tree were innocent. It was
considered that they came to commit a small, inconsiderable trespass,
and that the man was killed upon a sudden affray without their knowledge.
But the decision would have been otherwise if they had all come thither
with a general resolution against all opposers ; for then the murder would
have been committed in prosecution of their original purpose (?/).

Where on a trial for murder the case for the Crown was, that the
prisoner and J. had followed the deceased for the purpose of robbing
him, and that, in pursuance of that object, one or both of them struck the
deceased on the head and killed him, and the preceding passage was
cited for the prisoner : Bramwell, B., told the jury, ' The rule of law is
this : if two persons are engaged in the pursuit of an unlawful object,
the two having the same object in view, and, in the pursuit of that common
object, one of them does an act which is the cause of death under such
circumstances that it amounts to murder in him, it amounts to murder
in the other also. The cases which have been referred to may be explained
in this way. The object for which the parties went out was a compara-
tively trifling one, and it is almost impossible to suppose that if one had
committed a murder whilst engaged in the pursuit of such an object,
the act could have been done in furtherance of the common object they
had in view, which was comparatively so unimportant. Suppose two
men go out together, and one of them holds a third man for the purpose
of enabling his companion to cut that man's throat, and his com-
panion does so, no one could doubt that they were both equally guilty
of murder. Therefore, if you find the common unlawful object in the
two prisoners, and death ensuing from the act of J. in pursuance
of that common unlawful object, under such circumstances that it was
murder in him, it is your duty to find the prisoner guilty ' (z).

Where there is a general resolution against all of posers, whether such
resolution appears upon evidence to have been actually and explicitly
entered into by the confederates, or may be reasonably collected from

(x) Fost. 351, 352. 2 Hawk. c. 29, s. 9. some goods. The question was, whether

See R. V. Howell, 9 C. & P. 437, per Little- this was felony in all ; and Holt, C. J., citing

dale, J. the case, says, ' That they were all engaged

(y) Fost. 353. Case at Salisbury, Lent in an unlawful act is plain, for they could

Assizes, 1697, MS. Denton & Chappie, 2 not justify breaking a man's house without

Hawk. c. 29, s. 8. R. v. Skeet, 4 F. & F. making a demand first ; yet aU those who

931. And see R. v. Hodgson and others, were not guilty of the stealing were acquit-

1 Leach, 6 ; and an Anon, case [1664], ted, notwithstanding their being engaged

1 Leach, 7, note (a), where several soldiers, in one unlawful act of breaking the door ;

who were employed by the messengers of for this reason, because they knew not of

the Secretary of State to assist in the appre- such intent, but it was a chance oppor-

hension of a person, unlawfully broke open tunity of stealing, whereupon some of them

the door of a house where the person was did lay hands.'

supposed to be ; and having done so, some {2) R. v. Jackson, 7 Cox, 357.
of the soldiers began to plunder, and stole

VOL. I. I

114 Of Parties to the Commission of Grime. [book i.

their number, arms, or behaviour, at or before the scene of action, and
homicide is committed by any of the party, every person present in the
sense of the law when the homicide is committed will be involved in the
guilt of him who gave the mortal blow (a). Thus where several persons
are together for the purpose of committing a breach of the peace, assault-
ing persons who pass, and, while acting together in that common object,
a fatal blow is given, it is immaterial which struck the blow, for the blow
given under such circumstances is in point of law the blow of all, and
it is unnecessary to prove which struck the blow (6).

But this doctrine applies only to assembUes formed for carrying into
execution some common purpose, unlawful in itself. For if the original
intention was lawful, and prosecuted by lawful means, and opposition is
made by others, and one of the opposing party is killed in the struggle,
in that case the person actually killing may be guilty of murder or
manslaughter, according to the circumstances ; but the persons engaged
with him will not be involved in his guilt, unless they actually aided and
abetted him in the fact ; for they assembled for another purpose which
was lawful, and consequently the guilt of the person actually killing
cannot by any fiction of law be carried against them beyond their original
intention (c).

It is submitted that the true rule of law is, that where several persons
engage in the pursuit of a common unlawful object, and one of them
does an act which the others ought to have known was not improbable
to happen in the course of pursuing such common unlawful object, all
are guilty.

When several are present and abet a fact, an indictment may lay it
generally as done by all, or specially, as done by one and abetted by the
rest (d). Or if the punishment for principals in the first and second
degrees is the same, all may be indicted as principals in the first
degree (e).

Homicide Cases. — If several persons are present at the death of a
man, they may be guilty of different degrees of homicide, as one of murder
and another of manslaughter ; for if there is no mahce aforethought in
the party striking, but malice in an abettor, it will be murder in the latter,
though only manslaughter in the former (/). Several persons conspired
to kill B., and set upon him accordingly, when S., who was a servant to
one of them, seeing the affray and fighting on both sides, joined with his
master, but knew nothing of his master's design. A servant of E., who
supported his master, was killed. The Court told the jury that maUce
against E. would make it murder in all those whom that malice affected,
as the malice against E. would imply malice against all who opposed the
design against E. : but, as to S., if he had no malice, but took part

(a) Fost. 353, 354. 2 Hawk. u. 29, s. 8. According to the old practice it was thought

See post, p. 721, ' Murder.' better to charge the parties according to

(6) E. V. Harrington, 5 Cox, 231, Mar- the facts as intended to be proved. B. v.

tin, B. See the Sissinghurst-house case Vide, Fitz. Corone, pi. 86. R. v. Burgess,

and others cited post, Bk. ix. c. i. p. 721. 1813, Tr. T. Post, p. 931 et seg. As to

(d\ 2 Hawk. c. 23, s. 76, and c. 25, s. 64. several, see R. v. Gordon, 1 Leach, 515 ;

B. V. Young, 3 T. R. 98. 1 East, B.C. 352.

e) This is so even in a case of rape. (/) 1 East, P.O. 350.

CHAP, v.] Of Principals and Accessories in Felony. 115

suddenly with those who had, without knowing of the design against E.,
it was only manslaughter in him. The jury found S. guilty of man-
slaughter and three others of murder, and the three were executed (g).

If the person charged as principal in murder be acquitted, a conviction
of another charged in the indictment as present aiding and abetting him
in the murder, is good. Holt, C.J., said : ' Though the indictment be
against the prisoner for aiding, assisting, and abetting A., who was
acquitted, yet the indictment and trial of this prisoner is weU enough, for
all are principals, and it is not material who actually did the murder ' (h).
And all who are present aiding and assisting are equally principals with
him who gave the stroke whereof the party died, though they are called
principals in the second degree {i). So that if A. is indicted for homicide,
or manslaughter, and C. and D. for being present and assisting A., and A.
does not appear, but C. and D. appear, they shall be arraigned ; and. if
convicted shall receive judgment, though A. neither appears nor is out-
lawed (j). And if A. is indicted as having given the mortal stroke, and
B. and C. as present, aiding and assisting, and upon the evidence it appears
that B. gave the stroke, and A. and C. were only aiding and assisting,
it maintains the indictment, and judgment may be given. against them
all ; for it is only a circumstantial variance, and in law it is the stroke of
all that were present aiding and abetting (k).

Where the first count charged D. as principal in the first degree in
the murder of W. C. by shooting him with a gun, and P. as being present
aiding and abetting D., and the second count charged P. as principal
in the first degree, alleging that he 'afterwards' assaulted 'the said W. C.,''
&c., and D. as being present aiding and abetting P. ; the jury found
both guilty, but added that they were not satisfied which of the prisoners
fired the gun, but were satisfied that one of them fired the gun, and that
the other was present aiding and abetting. It was thereupon submitted
that, the prisoners being charged difierently in the two counts, the jury
must be instructed to find them guilty on one or the other of the counts
only ; but Coltman, J., thought that, as the evidence equally supported
either count, it was not necessary to give any such direction, and there-
fore told them that if they were satisfied that one of the two fired the gun,
and that the other was present aiding and abetting, they were both liable
to be found guilty, and the jury returned a general verdict of guilty.
Upon a case reserved, the conviction was held right, for both counts
substantially related to the same person killed and to one killing (l).

Where a count charged A. with murder, and B. and C. with being
present aiding and abetting in the commission of the murder, and it
appeared that A. was insane at the time of committing the murder, it

ig) R. V. Salisbury [1553], Plowd. 100. (k) 1 Hale, 438. Plowd. 98a. R. v.

75 E. R. 158. See 1 Hale, 446, and post, Maokalley, 9 Co. Rep. 676. 1 East, P.C.

Bk. i*. c. i. 350. R. v. Turner, 1 Lew. 177, Parke, B.

(A) R. V. Wallis, 1 Salk. 334. R. v. Taylor, R. v. Phelps, C. & M. 180.

1 Leaoh, 360 : 1 East, P.C. 351. (I) B. a. Downing, 1 Den. 52, Maule, J.,

(i) 1 Hale, 437. Plowd. 100a. An- diss. See 2 C. & K. 382, for the indictment,

ciently the man who gave the fatal stroke Now the proper course in such case would

was considered the principal, and those be simply to allege that the prisoners

present only accessories. murdered C, according to 24 & 25 Vict.

(?) 1 Hale, 437. Gittin's case, Plowd. c. 100, s. 6 ; post, p. 818.

100 : 73 E. R. 155.

116 Of Parties to the Commission of Crime. [book i.

was held that B. and C. could not be convicted on this count (m). Where
a count charged B. and C. as principals in the first degree with a murder,
and it appeared that A., an insane person, collected a number of persons
together, who armed themselves, having a common purpose of resisting
the lawfully constituted authorities, A. having declared that he would
cut down any constables who came against him, and a constable having
come with his assistants, and a warrant to apprehend A., A., in the
presence of B. and C, who were two of his party, shot one of the assistants ;
it was held that the prisoners were guilty of murder as principals in the
first degree, and that it was no ground of defence that A. and his party
had no distinct or particular object in view when they assembled together
and armed themselves ; because, if their object was to resist all opposers
in the commission of any breach of the peace, and for that purpose the
parties assembled together and armed themselves with dangerous weapons,
however blank the mind of A. might be as to any ulterior purpose, and
however the minds of the prisoners might be unconscious of any particular
object, still, if they contemplated a resistance to the lawfully constituted
authorities of the country, in case any should come against them while
they were so banded together, there would be a common purpose, and they
would be answerable for anything which they did in the execution of it(w).

(iii.) Accessories Before the Fact.

An accessory before the fact is he who, being absent at the time of the
offence committed, procures, counsels, commands, or abets another to
commit a felony (o). The term accessory is in practice confined to cases
of felony. It is not used with reference to high treason (p). In crimes
under the degree of felony there are no accessories : but all persons con-
cerned therein, if guilty at all, are principals {q). Those who by hire,
command, counsel, or conspiracy, or by shewing an express liking, appro-
bation, or assent to another's felonious design of committing a felony,
abet and encourage him to commit it, but are so far absent when he
actually commits it that he could not be encouraged by the hopes of
any immediate help or assistance from them, are accessories before the
fact (r). .Thus, if A. bids his servant to hire some one, no matter whom,
to murder B., and furnishes him with money for the purpose, and the
servant procures C, a person of whom A. never saw or heard to commit
the murder, A. is an accessory before the fact to the murder by C. (s).

(m) R. v. Tyler, 8 C. & P. 616, Denman, procurement or counsel, and he in law is a

C.J. Sed qucere. procurer. In a strict sense he who caused

(n) R. V. Tyler, ibid. a forgery to be done is a forger himself, and

(o) 1 Hale, 615. 24 & 25 Vict. c. 94, s. 2. should be so charged in the indictment ;

Ip) 2 Hawk. c. 29, ss. 2, 5. Hale, 613. R. v. Stocker, 5 Mod. 138. The assent here

Fost. 341. 4 Bl. Com. 35. mentioned must be understood of an assent

iq) R. V. Burton, 13 Cox, 71. 1 Hale, to the design of forging, before the fact of

613. 4 Bl. Com. 36. the forgery committed (2 East, B.C. 973),

(r) 2 Hawk. c. 29, s. 16. Cf. 1 Hale, 435, since, according to Hale, (1 B.C. 684) an

as to homicide. Coke in speaking of forgery assent after the fact committed makes not

says (3 Inst. 169) that to cause is to pro- the party assenting guilty or principal in

cure or counsel one to forge ; to assent is to forging ; but it must be a precedent or

give his assent or agreement afterwards to concomitant assent.

the procurement or counsel of another; {s) Fost. 125. R. v. McDaniel, 19 St.

to consent is to agree at the time of the Tr. 746, 789. 2 Hawk. o. 29, ss. 1, 10.

CHAP, v.] Of Principals and Accessories in Felony. 117

But words which amount to bare permission will not make an accessory,
as if A. says he will kill J. S., and B. says, ' You may do your pleasure for
me,' this will not make B. an accessory {t). And it seems to be generally
agreed that he who barely conceals a felony which he knows to be intended
is guilty only of misprision of felony, and shall not be adjudged an
accessory (u). The same person may be a principal and an accessory in
the same felony, as where A. commands B. to kill C, and afterwards
actually joins with him in the fact (v).

Probably, in point of law, any degree of incitement, with the actual
intent to procure the commission of the crime, is sufficient, and it is no
defence to shew that the crime was not committed in consequence of the
incitement, but from some other motive (see 2 Stark, Ev. 8, 2nd ed.).
But there must be some degree of direct incitement. The prisoner, at the
request of a pregnant woman who wished to procure abortion, obtained
corrosive sublimate for her at her instigation, and influenced by
a threat that she would destroy herself if she did not get it. He knew
the purpose for which she wanted it, but though he gave it to her for that
purpose, he was unwilling that she should use it, and did not administer
it to her, nor cause her to take it. She, however, took it for the purpose
assigned, and died in consequence. On a case reserved, it was held that
the prisoner was not an accessory before the fact (w). The facts of the
case would have been sufficient to convict the prisoner upon a charge of
procuring or supplying poison, under sect. 59 of the Offences Against
the Person Act, 1861 (24 & 25 Vict. c. 100) (x).

Where the prisoner held the stakes for a prize fight, which resulted
in the death of one of the combatants, Cockburn, C.J., said : ' To support
an indictment for being accessory before the fact to manslaughter,
there must be an active proceeding on the part of the prisoner. He is
perfectly passive here, all he does is to accept the stakes ' (y).

At common law the offence of an accessory before the fact was
regarded as so different from that of a principal in the second degree,
that where a woman was indicted as an accessory before the fact, it was
held that she could not be convicted of that charge upon evidence proving
her to have been present aiding and abetting ; it being clearly admitted to
be necessary to charge a principal in the second degree with being present,
aiding and abetting (z).

Where D. was indicted for a burglary, and with steahng goods in the
house, and V. as an accessory to ' the said burglary,' and D. had been
acquitted of the burglary, but found guilty of the larceny, and V. found

(t) 1 Hale, 615. and evidence given only in support of the

(w) 1 Hale, 616. 2 Hawk. o. 29, s. 23. second ; the verdicts appear, however, to

{v) 2 Hawk. c. 29, s. 1, where it is said have been pronounced successively. 7 St.

also that he may be charged as principal Tr. 231.

and accessory in the same indictment ; but (w) R. v. FretweU, L. & C. 161 : 31 L. J.

this was not allowed (R. v. Madden, 1 M.O. 145.

Mood. 277 ; R. v. Galloway, ibid. 234) until (a) Post, p. 864.

11 & 12 Vict. c. 46, s. 1. In Atkins' case, who {y) R. v. Taylor, L. R. 2 C. C. R. 148 :

was tried for the murder of Sir E. Godfrey 44 L. J. M. C. 67 : 13 Cox, 68.

two indictments were found against him, (z) R. v. Gordon, 1 Leach, 515 ; 1 East,

one as principal, the other as accessory ; P.C. 352. And see Heydon's case, 4 Co.

and he was arraigned upon both at the Rep. 42b.

game time. But the first was abandoned,

118 Of Parties to the Commission of Crime. [book i.

guilty as accessory, it was objected that as tlie jury liad acquitted the
principal of the burglary, the accessory must be acquitted altogether.
But a great majority of the judges were of opinion that, as D. acted in
order to detect the other prisoner, he was free from any felonious intent,
and therefore the charge against V., as accessory, of course could not be
supported [a).

If an Act of Parliament enacts that an offence shall be felony, though
it says nothing of accessories before or after, yet virtually and conse-
quentially those who counsel or command the offence are accessories
before the fact (6), and those who knowingly receive the offender are
accessories after (c).

Statutes as to Accessories. — The Legislature, in statutes concerning
accessories before the fact, has not confined itself to any certain mode of
expression ; but has rather chosen to make use of a variety of words all
conveying the same general idea. In the Accessories and Abettors
Act, 1861 (24 & 25 Vict. c. 94) {d), which contains general provisions
■applicable to all felonies, whether at common law or under any statute,
past or future, the words used to describe an accessory before the fact
are, 'whosoever shall counsel, procure, or command any other person
to commit any felony ' (s. 2). The other Criminal Law Consolidation
Acts of 1861, and most modern Acts, use the word accessories simply,
without further words descriptive of the offence (e). Some early statutes
have the words abetment, procurement, helping, maintaining, and counsel-
ling (/) ; or aiders, abettors, procurers, and counsellors (gr). One de-
scribes the offence by the words command, counsel, or hire {h) ; another
calls the offenders procurers or accessories (t). One having made use
of the words comfort, aid, abet, assist, counsel, hire, or command, im-
mediately afterwards, in describing the same offence in another case,
uses the words counsel, hire, or command only (/). One statute calls
them counsellors and contrivers of felonies {k) ; and many others make
use of the terms counsellors, aiders, and abettors, or barely aiders and
abettors. Upon these different modes of expression, all plainly descriptive
of the same offence, Foster, J., thinks it may be safely concluded that in
the construction of statutes we are not to be governed by the bare sound,
but by the true legal import of the words ; and that every person who
comes within the description of these statutes, various as they are in
point of expression, is in the judgment of the Legislature an accessory
before the fact ; unless he is present at the fact, and in that case he is
a principal (Z).

(a) R. V. Danelly & Vaughan, 2 Marsh, (h) 1 Ann. St. 2, c. 9 (rep.).

671 ; R. & K. 310. (I) That is, a principal in the first degree

(6) 1 Hale, 613, 614, 704. 3 Co. Inst. if the actual perpetrator, or a principal in

59. the second degree if only an aider and

(d) Post, p. 130. where, speaking of a case in 1 And. 195, in

(e) The same will be found in some early which an indictment was held to be suffi-
statutes : 31 Eliz. o. 12, s. 5 (rep.) ; 21 Jac. cient, though the words of the statute of
I. c. 6 (rep.). Ph. & M. were not pursued, the words

(/) 23 Hen. VIII. c. 1, s. 3 (rep.). exciiavit, movit, et procnravit, being deemed

(g) 1 Ed. VI. c. 12, s. 13 (rep.). tantamount to the words of the statute and

{h) 4 & 5 Ph. & M. c. 4 (rep. ). descriptive of the same offence, he says that

(i) 39 Eliz. c. 9, s. 2 (rep. ). he takes that case to be good law, though

(j) 3 Will. & M. c. 9 (rep.). he confesses it is the only precedent he has

CHAP, v.] Of Princifols and Accessories in Felony. 119

It is an incontrovertible principle of law that he who procures the
commission of a felony is a felon (to) ; and when he procures its com-
mission by the intervention of a third person, who is not an innocent
agent (w), he is an accessory before the fact ; for there is nothing in the
notion of commanding, hiring, counselling, aiding, or abetting, which
may not be affected by the intervention of a third person without any
direct immediate connection between the first mover and the actor.
And a peer was found guilty of murder, upon evidence which shewed
that he had contributed to the murder, by the intervention of his lady
and of two other persons who were themselves no more than accessories,
without any sort of proof that he had ever conversed with the person
who was the only principal in the murder, or had corresponded with him
directly by letter or message (o). For it is not necessary that there
should be any direct communication between an accessory before the
fact and the principal offender.

In all felonies there may be accessories before the fact except in those
felonies which by judgment of law are sudden and unpremeditated.

Manslaughter. — Such are some cases of manslaughter and the Hke {f).
But there are cases of manslaughter where there may be accessories
before the fact. Upon an indictment for manslaughter it appeared that
the death of the prisoner's wife was caused by swallowing sulphate of
potash for the purpose of procuring abortion, she believing herself to be
pregnant, although in reaUty she was not. The prisoner purchased the
sulphate of potash, and gave it to his wife in order that she might swallow
it for the above-mentioned purpose, but he was absent at the time when
she swallowed it. For the prosecution, it was contended that the wife
committed a felony in swallowing the sulphate of potash, and as death
ensued therefrom, she also committed murder {q) ; that the prisoner
was an accessory before the fact to this felony, and to the consequent
murder, and might be tried under 11 & 12 Vict. c. 46, s. 1 [r), and that,
although the evidence shewed his offence was murder, yet it would
support an indictment for manslaughter. For the prisoner it was con-
tended that there could not be an accessory before the fact in man-
slaughter ; but it was held, upon the facts of this case, that the prisoner
might be convicted of manslaughter (s).

met with where the words of the statute 35, Tindal, C. J., Coleridge and Coltman, JJ.

have been totally dropped. Approved E. v. Richards, 2 Q.B.D. 311.

(m) Post. 125, and vide ante, p. 116. {q) B. v. Russell, 1 Mood. 356. See R.

{») Vide ante, p. 104. v. Fretwell, L. & C. 161, ante, p. 117.

(o) The case of the Earl of Somerset, in- (r) Repealed in 1861 (24 & 25 Vict,

dieted as an accessory before the fact to the c. 95, s. 1), and replaced by 24 & 25 Vict,

murder of Sir Thomas Overbury, 2 St. c. 94, s. 1, post, p. 130.

Tr. 951. Cf. R. v. Cooper, 5 C. & P. 585, (s) R. v. Gaylor, D. & B. 288. During

Parke, J. the argument, BramweU, B., said, ' Suppose

(p) Bibithe's case, 4 Co. Rep. 43. Goose's a man for mischief gives another a strong
case, Moore (K.B.), 461 : 72 E. R. 695. Cro. dose of medicine, not intending any further
Eliz. 540. 4 Bl. Com. 36. 1 Hale, 615. 2 injury than to cause him to be sick and
Hawk. c. 29, s. 24. There may be accessories uncomfortable, and death ensues, would
after the fact in manslaughter.and if the prin- not that be manslaughter ? Suppose, then,
cipal is found guilty of manslaughter, upon another had counselled him to do it, would
an indictment for murder, a party charged not he who counselled be an accessory be-
as accessory after the fact to the murder, fore the fact ? ' See R. u. Smith, 2 Cox,
may be found guilty as accessory to the 233, Parke, B. See the observations on
manslaughter. R. v. Greenacre, 8 C. & P. this subject, Greaves' Crim. Cons. Acts, 43

120 Of Parties to the Commission of Crime. [book t.

Forgery. — In the older authorities it is laid down that all are princi-
pals in forgery, and that whatever would make a man accessory before
the fact in felony would make him a principal in forgery {t) ; but this
must be understood of forgery at common law, which is only a misde-
meanor (w). And Bothe's case {v) decided upon 5 Eliz. c. 14, which
would seem to lead to a contrary conclusion, seems from its circumstances
merely an illustration of the general rule, that when a statute makes a
new felony, it incidentally and necessarily draws after it all the con-
comitants of felony, namely, accessories before and after (w).

If several combine to forge an instrument, and each executes by him-
self a distinct part of the forgery, they are all principals, though they are
not together when the instrument is completed. On an indictment for
forgery against A., B., and C, it appeared that A. and B. bought the
paper, and cut it into pieces of the proper size at their house ; it was
then taken to C, who struck off in blank all the printed part of the note
except the date line and the number, and impressed on the paper the
wavy horizontal lines. The blanks were then brought back to the house
of A. and B., where the water-mark was introduced into the paper ;
after which A., in the presence of B., impressed the date line and number,
and B. added the signature. It did not appear that C. was present at
this time. The jury found tha,t all three concurred and co-operated in
the design and execution of the forgery, each taking his own part, and
that A. and B. acted together in completing the notes. The judges
were of opinion that, as each of the prisoners acted in completing some
part of the forgery, and in pursuance of the common plan, each was a
principal in the forgery ; and that although C. was not present when
the note was completed by the signature, he was equally guilty with the
others {x).

So if several make distinct parts of a forged instrument, each is a
principal, though he does not know by whom the other parts are executed,
and though it is finished by one alone in the absence of the others {y).
On an indictment against D., K., and S., for forging a note, and against
A. and C. as accessories before the fact, it appeared that S. made the
paper, K. engraved the plate, and struck off the impression ; and D. in
the absence of S. and K., filled up and finished the note. S., when he
made the paper, did not know that K. or D. were to have anything to do
with the forgery ; nor did K. know, when he engraved the plate and
made the impression, that D. or S. were, or were to be, concerned. A.
and C. were the movers, and through them all the parties were set to
work. D. was not upon his trial, and A. and C. could not properly be
tried, unless S. and K. were to be deemed principals. The judges held that
K. and S. were principals, that the ignorance of S. and K. of those who
were to effect the other parts of the forgery was immaterial ; and that

(2nd ed.) ; and see R. v. Wilaon, D. & B. Morris, 2 Leach, 1096, note (a).

127 ; and R. v. Farrow, ibid. 164. («) Goose's case, Moore (K.B.), 461.

(t) Bothe's case, Moore (K.B.), 666: 72 (w) 2 East, P.C. 973, 974

E. R. 827. 1 Sid. 312. See also 2 Hawk. {x) R. v. Bingley, R. & R. 446.

c. 29, s. 2, and authorities cited in 2 East, (y) R. v. Kirkwood, 1 Mood. 304. R. v.

PC. 973. Dade, ibid. 307. R. v. Binsley, R. & R.

(«) 2 East, P.C. 973; and see R. v. 446.

CHAP, v.] Of Principals and Accessories in Felony. 121

it was sufficient if they knew it was to be effected by somebody (z). Tliere
was another indictment against D. and K. for forgery. K. engraved the
plate, and worked off the impression from it, and D., in his absence,
filled up the notes ; D. was not on his trial. It was held that K. was a
principal (a).

It follows, from the two last cases, that those who procure and cause
an instrument to be forged, but execute no part of the forgery, and are
not present when it is executed, are accessories before the fact, and not
principals.

Three prisoners, S., A., and B., were charged by the indictment with
feloniously uttering a forged bank note for £5 knowing it to be forged, &c.,
with intent to defraud the Bank of England. The indictment also con-
tained the other usual counts, for forging, and for disposing of and putting
away the note with the like intent ; together with counts stating the
intent to be, to defraud the person to whom it was offered in payment.
The prisoner B. offered the note in question in payment for a pair of
gaiters at a shop in G., and the other two prisoners, S. and A., were not
with B. at the time he so offered the note, but were waiting at P. till he
should return to them, it having been previously concerted between the
three prisoners that B. should go over the water from P. to G., for the
purpose of passing the note, and when he had passed it, should return
to join the other two prisoners at P. ; they all three knowing that it
was a forged note, and having been concerned together in putting off
another note of the same sort, and in sharing the produce among them.
The counsel for the prisoners S. and A. objected, that they were not
guilty of the charge made against them in this indictment, not having been
present at the time the other prisoner uttered the note, nor so near as
to be able to aid and assist him ; and that they could be charged only
as accessories before the fact. The jury found that the forged note was
uttered by the prisoner B., in concert with the other two prisoners, and
found them all three guilty. The prisoner B. was left for execution :
but as to the other two, on a case reserved, the judges had no doubt that
they were entitled to an acquittal on this indictment charging them as
principals, they not being present at the time of the uttering, or so near
as to be able to afford any assistance to the accomplice who actually
uttered the note (b).

But where three persons were jointly indicted under 1 Will. IV. c. 66,
s. 19 (rep.), for feloniously using plates containing impressions of forged
foreign notes, it was held that the jury must select some one particular
time after all three had become connected, and must be satisfied, in order
to convict them, that at such time they were all either present together
at one act of using or assisted in one such act, as by two using, and one
watching at the door to prevent the others being disturbed, or the like ;
and that it was not sufficient to shew that the parties were general
dealers in forged notes, and that at different times they had singly used

{z) R. V. Kirkwood, 3 Bum's J. (D. & (6) R. v. Scares, MS. and 2 East, P.O.

W. ed.), 286: MSS. Bayley, B. R. i). Dade, 974. R. & R. 25. Cf. R. v. Badoook,

1 Mood. 307. R. & R. 249, and R. o. Stewart, R. &

(o) R. V. Kirkwood, 3 Bum's J. (D. & W. R. 363.
ed.), 286 : MSS. Bajfley, B. 1 Mood. 304.

122 Of Parties to the Commission of Crime. [book i.

the plates, and were individually in possession of forged notes taken
from them (c).

And where three prisoners were indicted under the same section, for
feloniously engraving a promissory note of the Emperor of Eussia, and
it appeared that the plates were engraved by an Englishman, who was
an innocent agent, and two of the prisoners only were present at the
time when the order was given for engraving the plates, but they said
they were employed to get it done by a third person, and there was some
evidence to connect the third prisoner with the other two in subsequent
parts of the transaction ; it was held, that in order to find all three guilty,
the jury must be satisfied that they jointly employed the engraver, but
that it was not necessary that they should all be present when the order
was given, as it would be sufficient if one first communicated with the
other two, and all three concurred in the employment of the engraver (d).

In E. V. Morris (e) a wife was indicted as a principal in a forgery on
49 Geo. III. c. 123, s. 13 (rep.), and her husband as an accessory before
the fact at common law. The indictment charged S. M. with forging
an order and certificate for receiving prize money, which had become
due to one H. T., a petty officer in the naval service, with intent to
defraud, &c. ; and J. M., with inciting, counselling, aiding, procuring, &c.,
the said S. M. to commit the said felony. The second count charged
S. M. with having uttered the order and the certificate by the incitement
of J. M. And there were many other counts in which the offence was
charged, with some variations. The prisoner, S. M., who was the wife of
the other prisoner, J. M., and real or pretended daughter of H. T. (a petty
officer on a King's ship), applied to a clerk in the cheque office for the
payment of prize money then due to H. T. ; and produced at the same
time the order stated in the indictment. She went away, leaving the
order with the clerk, but in about four or five days came again, when
the order was given back to her with a request that she would not apply
again until she was duly informed that the money had been remitted to
the office. Almost immediately after this second visit, the other prisoner,
J. M., wrote a letter to the Clerk of the Cheque on the subject. On
December 8, notice was given to S. M. that the prize money was come
in, and that she might receive the share of it to which H. T. was entitled ;
upon which she went to the office with the same order and certificate,
which she produced ; and had nearly obtained the warrant for the pay-
ment of the money, when circumstances occurred which caused suspicion,
and she and her husband were shortly afterwards apprehended. H. T.,
whose name purported to be signed to the order, could not write, and
was obliged always to make a mark whenever his signature was required ;
and the name of the officer, by whom the certificate purported to be
subscribed, was not in his handwriting. The landlord of the house in
which the prisoners lodged, stated that the prisoner, J. M., had, in two
or three instances, ordered his wife, S. M., to go to Greenwich Hospital
respecting about £30 of prize money due to H. T., his wife's father. He

and Gaselee, JJ. (c) 2 Leach, 1096.

(d) R. V. Mazeau, 9 C. & P. 676,

CHAP, v.] Of Princifals and Accessories in Felony. 123

also testified that he really believed that S. M. went to receive it in
obedience to her husband's orders. And it was proved that the prisoner,
J. M., had signed a paper, stating that his wife had acted in this business
entirely under his orders and directions. It was also proved by a witness
that the prisoner, J. M., represented to him that there was about £30
prize money due to his father-in-law, H. T., and that he would be obliged
to him if he would fill up the blanks in certain papers which he produced ;
that the witness accordingly filled up the blanks, excepting the signatures ;
and that, on observing there was a spare half-sheet to the papers he so
filled up, he advised the prisoner, J. M., to send it by the post to his
father-in-law ; but that he replied that his wife would get it done. This
witness further stated, that he afterwards met the prisoner, J. M., who
then told him that he had got the papers regularly signed by H. T. and
the captain ; and that he was going to send his wife for the money. It
was submitted that as S. M., in the part she took in this transaction,
had clearly acted under the directions and coercion of her husband, she
could not be found guilty (/) ; and that if she was innocent as a principal,
the other prisoner could not be guilty as an accessory. And the jury
having found both the prisoners guilty, on a case reserved, the twelve
judges were unanimously of opinion that the prisoner, S. M., was guilty
of uttering the forged instrument, knowing it to be forged ; and that the
prisoner, J. M., was guilty of the offence of an accessory before the fact
at common law.

Liability of Accessory where Principal does not follow the Precon-
certed Plan. — There has been much discussion as to the liability of an
accessory when the principal does not act in conformity with the plans
and instructions of the accessory. If the principal totally and substantially
varies from the terms of the instigation, if being solicited to commit a
felony of one kind, he wilfully and knowingly commits a felony of another,
he will stand single in that offence, and the person soliciting will not be
involved in his guilt (g). Thus if A. commands B. to burn C.'s house,
and he in so doing commits a robbery ; now A., though accessory to the
burning, is not accessory to the robbery, for that is a thing of a distinct
and inconsequential nature (h). And if A. counsels B. to steal goods of
C. on the road, and B. breaks into C.'s house and steals them there, A. is
not accessory to the breaking the house, because that is a felony of another
kind (i). He is, however, accessory to the stealing (/). But if the princi-
pal complies in substance with the instigation of the accessory, varying
only in circumstances of time or place, or in the manner of execution,
the accessory will be involved in his guilt : as if A. commands B. to murder
C. by poison, and B. does it by a sword or other weapon or by any other
means, A. is accessory to this murder ; for the murder of C. was the
object principally in contemplation, and that is effected (k). And if

A. counsels B. to steal goods in C.'s house, but not to break into it, and

B. does break into it, A. is accessory to the breaking (Z). And where
the principal goes beyond the terms of the solicitation, yet if, in the event,

(/) As to coercion, vide ante, p. 93 etseq. (j) 1 Hale, 617.

(g) Fost. 369. 1 Hale, 436. {k) Fost. 369, 370. 2 Hawk. c. 29, s. 20.

(ft) 1 Hale, 617. 4 Bl. Com. 37. 4 Bl. Com. 37.

(i) Plowd. 475. (?) Bac. Max. Reg. 16.

124 Of Parties to the Commission of Crime. [book i.

the felony committed was a probable consequence of what was ordered or
advised, the person giving such orders or advice will be an accessory to
that felony. Thus if A. advises B. to rob C, and in robbing him B. kills
him, either upon resistance made, 6r to conceal the fact, or upon any
other motive operating at the time of the robbery, in such a case A. is
accessory to the murder as well as to the robbery (m). And if A. soHcits
B. to burn the house of C, and B. does it accordingly ; and the flames
taking hold of the house of D., that likewise is burnt : A. is accessory to
B. in the burning of the houses both of C. and of D. The advice,
solicitation, or orders of A. were pursued in substance ; and the events,
though possibly falling out beyond his original intention, were, in the
ordinary course of things, the probable consequences of what B. did
under the influence and at the instigation of A. (n).

Where A. counselled a pregnant woman to murder her child when
it should be born, and she murdered it accordingly, A. was held to be
accessory to the murder ; the procurement before the birth being con-
sidered as a felony continued after the birth, and until the murder was
perpetrated by reason of that procurement (o).

Commission of a Crime other than that commanded. — If A. com-
mands B. to beat C, and B. beats him so that he dies, A. being absent,
B. is guilty of murder as principal, and A. as accessory ; the crime having
been committed in the execution of a command which naturally tended
to endanger the life of another (p). It is also said, that if one commands
a man to rob another, and he kills him in the attempt but does not rob
him, the person giving such command is guilty of the murder, because it
was the direct and immediate effect of an act done in execution of a
command to commit a felony (q).

Where an indictment charged certain persons with the murder of B.
at Paris, and the prisoner as accessory before the fact, and it appeared that
two grenades were first thrown and exploded, and a third about a minute
afterwards, and that B. was one of the Gardes de Paris on duty at the
time, and that he died of wounds caused by the explosion ; Lord Campbell,
C.J., told the grand jury, ' as to the objection that the prisoner could
have had no intention that those who were killed by the explosion of the
grenades should be put to death, it may be observed that such a question
can only arise where the principal does not act in strict conformity with
the plans and instructions of the accessory. But here, if the prisoner
was privy to the plot, the other persons in throwing the grenades as they
did must be considered as having acted strictly in conformity with his
plans and instructions, and he is answerable as accessory for the conse-
quences. It is even laid down that where the principal goes beyond
the terms of the solicitation, yet, if in the event the felony committed
was a probable consequence of what was ordered or devised, the person
giving such orders or advice will be an accessory to that felony. . . . The
true test is, " was the event alleged to be the crime to which the accused

(m) Fost. 370. Com. 37.

(re) Ibid. ip) 1 Hale, 435. 2 Hawk. o. 29, s. 18.

(o) R. V. Parker, Dy. 186a., pi. 2. 1 4 BI. Com. 37.

Hale, 617. 2 H^wk. c, 29, s. 18, 4 Bl. (q) 2 Hawk. c. 29, s. Ig.

CHAP, v.] Of Princifals and Accessories in Felony. 125

is charged to be accessory, a probable consequence of tbe act he com-
mitted "i"' {r).

More difficult questions arise where the principal hy mistake commits
a different crime from that to- which he was soHcited by the accessory.
It has been said, that if A. orders B. to kill C, and he by mistake kills D.,
or aiming a blow at C. misses him and kills D., A. will not be accessory
to this murder, because it differs in the person (s). And in support of this
position Saunders' case (t) is cited ; who, with the intention of destroying
his wife, by the advice of one Archer, mixed poison in a roasted apple,
and gave it her to eat ; and the wife, having eaten a small part of
it, and having given the remainder to their child, Saunders (making only
a faint attempt to save the child whom he loved, and would not have
destroyed) stood by and saw it eat the poison, of which it soon afterwards
died. And it was held, that though Saunders was clearly guilty of the
murder of the child, yet Archer was not accessory to that murder. But
Foster, J., thinks that this case of Saunders does not support the position
(which he calls a merciful opinion) to its full extent ; and he proposes the
following case as worthy of consideration : ' B. is an utter stranger to
the person of C. ; A. therefore takes upon him to describe him by his
stature, dress, age, complexion, &c., and acquaints B. when and where
he may probably be met with. B. is punctual at the time and place ;
and D., a person possibly in the opinion of B. answering the description,
unhappily comes by and is murdered, upon a strong belief on the part
of B. that this is the man marked out for destruction. Here is a lament-
able mistake, — but who is answerable for it ? B. undoubtedly is ; the
malice on his part egreditur personam. And may not the same be said
on the part of A. ? The pit which he, with a murderous intention, dug
for C, D. through his guilt fell into and perished. For B., not knowing
the person of C, had no other guide to lead him to his prey than the
description A. gave of him. B. in following this guide fell into a
mistake, which it is great odds any man in his circumstances might
have fallen into. I therefore, as at present advised, conceive that A. was
answerable for the consequence of the flagitious orders he gave, since that
consequence appears, in the ordinary course of things, to have been highly
probable ' (m).

Foster, J., then proposes the following criteria, as explaining the
grounds upon which the several cases falling under this head will be
found to turn : ' Did the principal commit the felony he stands charged
with under the influence of the flagitious advice ; and was the event, in
the ordinary course of things, a probable consequence of that felony ?
or did he, following the suggestions of his own wicked heart, wilfully
and knowingly commit a felony of another kind, or upon a different
subject ? ' (v).

Countermanding. — If A. commands B. to kill C, but before the execu-
tion thereof repents and countermands B., yet B. proceeds in the execution
thereof ; A. is not accessory, for his consent continues not, and he gave

(»■) R. V. Bernard, 1 F. & F. 240 : 8 St. {t) Plowd. 475. 1 Hale, 431.

Tr. (N. S.) 887, 895. (a) Fost. 370, 371.

(s) 1 Hale, 617. 3 Co. Inst. 51. (.v) Fost. 372.

126 Of Parties to the Commission of Crime. [book i.

timely countermand to B. But even though. A. had repented, yet if B.
had not been actually countermanded before the fact committed, A.
would be an accessory before the fact (w).

(iv.) Accessories After the Fact.

An accessory after the fact is a person who, knowing a felony to have
been committed by another, receives, relieves, comforts, or assists the
felon (cc), e.g., in the case of murder by assisting the murderer to conceal
the death or to evade the pursuit of justice {y). Any assistance given
to one known to be a felon, in order to hinder his being apprehended or
tried, or suffering the punishment to which he is condemned, seems to
be a sufficient receipt to make a man an accessory after the fact : as
where one assists a felon with a horse to ride away, or with money or
victuals to support him in his escape, or where one harbours and conceals
in his house a felon under pursuit, by reason whereof the pursuers cannot
find him ; and much more where one harbours in his house and openly
protects such a felon, by reason whereof the pursuers dare not take him (2).
If A. has his goods stolen by B., and B. comes to C. and delivers him the
goods to keep for him, C. knowing that they were stolen, and that B.
stole them, or if C. receives the goods to facilitate the escape of B., or if
C. knowingly receives them upon agreement to furnish B. with supplies
out of them, and accordingly supplies him, this makes C. an accessory.
But the bare receiving of stolen goods, knowing them to be stolen, makes
not an accessory ; for he may receive them to keep for the true owner,
or till they are recovered or restored by law {a).

Where, after setting out the conviction of a principal for robbery
of a'£100 note, an indictment alleged that the prisoner did receive, harbour,
maintain, relieve, aid, comfort, and assist the principal, knowing him
to have committed the robbery, and it appeared that shortly after the
robbery the prisoner applied to his landlady to change the note, but
did not succeed, and that the principal went to a shop to purchase some
articles, for the payment of which he tendered the note, and received a
large part of it in change, and that during the time he was in the shop
the prisoner was waiting outside ; Maule, J., held that there was evidence
of comforting and assisting. If a man stole a horse, and another assisted
him in colouring and disguising him, so that he could not be known again,
that would make him an accessory. Here the prisoner assisted the party
who had stolen the note to get rid of it, and thus evade the justice of the
country (6).

Where a boy robbed the bank in which he was clerk, and the same
evening went to the room of the prisoner, a man, where he stayed twenty

(w) 1 Hale, 617. ensues there is no homicide committed,

(x) 1 Hale, 618. 4 Bl. Com. 37. 4 Bl. Com. 38. 2 Hawk. c. 29, s. 35. But

(y) R. V. Greenacre, 8 C. & P. 35, Tin- it would seem that he is accessory to the

dal, C. J., Coleridge and Coltman, JJ. ' It is maliciously wounding.' C. S. G.

said that if one wounds another mortally, (z) 2 Hawk. c. 29, s. 26. 1 Hale, 618,

and after the wound given, but before death 619. 4 Bl. Com. 38.

ensues, a person assists or receives the de- (a) 1 Hale, 619.

linquent, this does not make such person (6) R. v. Butterfield, 1 Cox, 39.

accessory to the homicide.; for till death

CHAP, v.] Of Principals and Accessories in Felony. 127

minutes, and both of them proceeded together that evening, by coach,
to Bristol, and thence to Liverpool, where they were apprehended before
they set sail for America, whither the prisoner had said they were going :
it was held that this was evidence to go to the jury, upon an indictment
charging the prisoner with harbouring, receiving, and maintaining the
boy, although the places in the coaches were paid for by the boy (c). So
a man who employs another person to harbour the principal may be
convicted as an accessory after the fact, although he himself did no act
of relieving or assisting the principal (d).

Whoever rescues a felon from an arrest for the felony, or voluntarily
and intentionally suffers him to escape, is an accessory after the fact to
the felony (e) : and it has been said, that those are in like manner guilty
who oppose the apprehending of a felon (/). A man may be an accessory
after the fact by receiving one who was an accessory before, as well as
by receiving a principal (g). And a man may make himself an accessory
after the fact to a larceny of his own goods, or to a robbery on himself,
by harbouring or concealing the thief, or assisting in his escape (h).

In order to support a charge of receiving, harbouring, comforting,
assisting, and maintaining a felon, there must be some act proved to have
been done to assist the felon personally ; it is not enough to prove posses-
sion of various sums of money derived from the disposal of the property
stolen (i).

An indictment alleged that M. sent letters demanding money with
menaces, and that the prisoner did ' feloniously receive, harbour, main-
tain, and assist ' the said M., knowing her to have committed the said
felony. The letters contained threats of exposing the immorality of the
prosecutor, and one of them threatened to insert a paragraph in the
' Satirist ' ; and immediately afterwards articles reflecting on the prosecu-
tor appeared in that paper, of which the prisoner was the proprietor, and
on being cautioned as to the course he was pursuing, the prisoner said he
could not stop the publication of such articles in future, and referred to
M., and gave her address, and on being told that the prosecutor would
submit to a little extortion rather than have his character assailed, the
prisoner consented to wait a week that the prosecutor might be spoken
to on the subject. Notices, however, that further articles of the same
nature would be published continued to appear in the ' Satirist.' It
was contended that there was no evidence to prove that the prisoner
was an accessory ; it was answered that any assistance given to the
principal to enable her to carry out the object with which the felony was
committed was sufficient. Erie, J., said : ' I do not agree to that proposi-
tion ; the assistance must tend to prevent the principal felon from being
brought to justice. The question is, did he, after the felony was com-
plete, assist the felon to elude justice ? It is no part of this felony that

(d) B. V. Jarvis, 2 M. & Rob. 40, Gur- {g) 2 Hawk. c. 29, s. 1.

ney, B. (A) Post. 123. Cromp. Just. 41b, pi. 4

(e) 2 Hawk. c. 29, s. 27. 1 Hale, 619 ; and 5.

but not the merely suffering him to escape, (i) R. v. Chappie, 9 C. & P. 355. Law,

where it is a bare omission. 1 Hale, 619. Recorder, after consulting Littledale, J.,
2 Hawk. c. 29, s. 29. and Alderson, B.

128 Of Parties to the Commission of Crime. [book i.

the money should be paid : the crime is complete as soon as the demand
is made. Can it be said, then, that by assisting in a fresh attempt to
obtain money, he aided her in concealing or even carrying out the one
completed ? ' (/).

Where a statute makes an offence felony, without mentioning acces-
sories, yet those who knowingly receive the offender are accessories after
the fact {k). It has, however, been said, that if the statute creating the
felony, in express terms, comprehends accessories before, but does not
mention accessories after, there can be no accessories after (l). But by
others it is considered to be settled law, that in all cases where a statute
makes any oSence treason, or felony, it involves the receiver of the
offender in the same guilt with himself, in the same manner as in treason
or felony at common law, unless there is an express provision to the
contrary (m). Hale says that (n) ' although generally an Act of Parlia-
ment creating a felony consequentially brings accessories before and after
within the same penalty, yet the special penning of the Act in such cases
sometimes varies the case.' Thus, 3 Hen. VII. c. 2 (rep.), against
abduction of women, made the taking away, the procuring and abetting,
and also the wittingly receiving, all equally felonies.

It is necessary for a receiver to have had notice, either express or
implied, of the felony having been committed, in order to make him an
accessory by receiving the felon (o) ; and the felony must be complete
at the time of the assistance given to make the assistant an accessory. So
that if one wounds another mortally, and after the wound given, but before
death ensues, a person assists or receives the delinquent ; this does not
make him accessory to the homicide, for till death ensues that felony is
not committed (p).

A married woman does not become an accessory after the fact to a
felony committed by her husband by receiving him, nor does she become
a principal in receiving her husband when his ofEence is treason, the law
considering that she is bound to receive him and not to discover him (q).
Nor is she liable, criminally, for receiving jointly with her husband any
offender (r).

Prosecutions against accessories after the fact grounded on the
common law are seldom instituted ; nor do they ever appear to have
had any great effect (s).

ij) R. V. HansiU, 3 Cox, 597. He left C. S. G. Vide ante, p. 126, note (y).

the case to the jury, intending to reserve (q) 1 Hawk. o. 1, s. 10. 2 Hawk. o. 29,

the point, but the prisoner was acquitted. s. 34. 1 Hale, 47, 621. R. v. Good, 1 0. &

(/c) 1 Hale, 613. ^mte, p. 118. K. 185, and w'de amic, p. 91. This applies to

(I) 1 Hale, 614. no other relation besides that of a wife to

(m) 2 Hawk. c. 29, s. 14. her husband ; and the husband may be an

(n) 1 Hist. P.O., 614, unless he means accessory for the receipt of his wife. 1 Hale,

the same penalty as is incurred by such 621.

accessories to a common law felony his (r) 1 Hale, 48, 621. But if the wife

statement is inaccurate. alone, the husband being ignorant, do

(0) 2 Hawk. c. 29, s. 32. knowingly receive B., a felon, the wife is

(p) 2 Hawk. c. 29, s. 35. 4 Bl. Com. 38. accessory and not the husband. 1 Hale,

' I apprehend it would make him accessory 621.

to the felony of maliciously wounding.' [s) Fost. 372.

CHAP, v.] Misprision of Felony. 129

Sect. III. — Misprision op Felony.

Misprision of felony closely resembles the offence of being accessory
after the fact to felony. It consists in concealing or procuring the con-
cealment of a felony known to have been committed (t), whether it be
felony by the common law or by statute (u). The offence differs from the
offence of the accessory in that it is not necessary to prove either privity
in the commission of the principal offence, or any active assistance of the
felon to escape from justice : but it is sufficient to shew mere silent
observation of the commission of a felony without using any endeavour
to bring the offender to justice (v), or to inform the officers of the law
of the commission of the felony, or that the accused has silently observed
the commission of a felony without any endeavour to apprehend the
offender (w). Under sect. 8 (1) of the Sheriffs Act, 1887 (50 & 51 Vict,
c. 55), ' Every person in a county shall be ready and apparelled at the
command of the Sheriff, and at the cry of the county, to arrest a felon,
whether within franchise or without, and in default shall, on conviction,
be liable to a fine ' (x). And it is said that it is the duty of a man to
discover the felony of another to a magistrate (y), and that the law
does not allow private persons the right to forgo a prosecution (2).
There must be mere knowledge without assent, for any assent or par-
ticipation will make the man a principal or an accessory (a). Conceal-
ment of treasure trove is described as a form of misprision of felony (6).
Misprision of felony is a misdemeanor at common law, punishable by
imprisonment without hard labour (c). Misprision of felony is also
distinct from theft-bote (cc) and from compounding a felony (d).

In 1275, the punishment of this offence in an officer was fixed by the
First Statute of Westminster (3 Edw. I. c. 9), which enacted (as amended),
that ' if any bailiff within a franchise, or without, for reward, or for
prayer, or for fear, or for any manner of affinity, conceal, consent, or
procure to conceal, the felonies done in their liberties ; or otherwise
will not attach nor arrest such felons there (as they may), or otherwise
will not do their office, for favour borne to such misdoers, and be attainted
thereof, they shall have one year's imprisonment, and after make a
grievous fine at the King's pleasure, if they have wherewith ; and if they
have not whereof, they shall have imprisonment of three years.' This
enactment has been repealed and superseded by the Sheriffs Act, 1887
(50 & 51 Vict. c. 55), which enacts, sect. 29 (1), that ' if a person, being a

[t) 1 Hawk. cc. 20, 59. 3 Co. Inst. 139. {y) 3 Inst. UO.

1 Chit. Cr. L. 3. See Steph. Dig. Cr. L. (z) R. v. Daly, 9 C. & P. 342, Gurney,

(6th ed.), p. 401. For a precedent of indict- B. ; sed qucere. Is not the duty merely to

ment, see 2 Chit. Cr. L. 232. inform of the crime ?

(w) 1 Hawk. c. 59, s. 2. (a) 4 Bl. Com. 121. But see 1 Hale, 616.

(«) 1 Hale, 374, 375. 1 Hawk. o. 59, s. 2, (5) 4 Bl. Com. 121. 3 Co. Inst. 133. See

n. (1). R. V. Thomas, L. & C. 313. R. v. Toole,

(w) 1 Hale, 371-375. 3 Co. Inst. 140. Ir. Rep. 2 Ch. 36.

1 Hawk. 0. 59, s. 6. See R. v. Sherlock, (c) Vide post, p. 249.

L. R. 1 C. C. R. 20 : 35 L. J. M. C. 92. {cc) 3 Co. Inst. 134. R. v. Burgess, 16

(x) The section also provides further penal- Q.B.D. 141, post, p. 579.

ties if the offender is baOiff of a franchise. {d) Post, p. 579.

VOL. I. K

130 Of Parties to the Commission of Crime. [b.ook i.

sherifE, under-sheriff, bailiff, or officer of a sheriff, whether within a franchise
or without, does any of the following things, that is to say —

{a) Conceals or procures the concealment of any felon, or
(6) Kefuses to arrest any felon within his bailiwick : . . .
he shall (without prejudice to any other punishment under the provisions
of this Act) be guilty of a misdemeanor, and be liable, on conviction, to
imprisonment for a term not exceeding one year, and to pay a fine, or if
he has not wherewith to pay a fine, to imprisonment for a term not exceed-
ing three years. ' The punishment in the case of other persons is imprison-
ment (without hard labour) for a discretionary time, or fine, or both (e).

Sect. IV. — Trial and Punishment op Accessokies to Felony.

The procedure for the trial and punishment of accessories now rests
almost entirely on statute (/).

The Accessories and Abettors Act, 1861, which came into operation
on August 6, 1861, after reciting that it is expedient to consolidate and
amend the statute law of England and Ireland relating to accessories
to and abettors of indictable offences, enacts as follows : —

As to Accessories Before the Fact. — Sect. 1. ' Whosoever shall
become an accessory before the fact to any felony, whether the same be
a felony at common law or by virtue of any Act passed or to be passed,
may be indicted, tried, convicted, and punished in all respects as if he
were a principal felon ' (g).

Sect. 2. ' Whosoever shall counsel, procure, or command any other
person to commit any felony (h), whether the same be a felony at common
law or by virtue of any Act passed or to he passed, shall be guilty of felony,
and may be indicted and convicted either as an accessory before the
fact to the principal felony, together with the principal felon, or after
the conviction of the principal felon, or may be indicted and convicted
of a substantive felony, whether the principal felon shall or shall not
have been previously convicted, or shall or shall not be amenable to

(c) The old authorities speak of fine or his absence. It was contended, that as A.
ransom at the King's pleasure. 4 Bl. Com. had been acquitted, B. must be so also ;
121, where it is said, ' which pleasure of the tor the statute had only altered the form of
King must be observed, once for all, not pleading, and not the law, as to accessories
to signify any extrajudicial will of the before the fact ; but it was held, that the
sovereign, but such as is declared by his statute had made the offence of the acces-
repreaentatives, the judges in his courts of sory before the fact a substantive felony,
justice ; voluntas Regis in curia, non in and that the old law, which made the con-
camera.' viction of the principal a condition preoe-

( / ) It is an old maxim that accessorius dent to the conviction of the accessory, was

sequitur naturam sui principalis (3 Co. Inst. done away by that enactment. B. v.

139: 4 Bl. Com. 36), and that an accessory Hughes, Bell, 242. 11 & 12 Vict. c. 46, s. 1,

cannot be guilty of a higher crime than his was held to apply to murder (Staffordshire

principal. Rummer Assizes, 1850, Williams, J., MSS.

(gr) Taken from 11 & 12 Vict. c. 46, o. 1, C. S. G., which has always been held a form

upon which it was held, that it was no ob- of felony). Anon. Keilw. 91b. 2 Hale, 45.

jeotion to an accessory before the fact being 3 Co. Inst. 236. Greaves' Crim. Law Cons,

convicted that his principal had been Acts (2nd ed.), 20.

acquitted. A. and B. were jointly indicted {h) Incitement to commit an offence

for stealing certain cotton. A. was ac- which is not in fact committed is not within

quitted and called as a witness against B. ; ss. 1, 2, but is a misdemeanor only. R. v.

and it clearly appeared that A. had stolen Gregory, L. R. 1 C. C. R. 77 - 36 L. J. M. C.

the'ootton at the instigation of B., and in 60, post, p. 203.

CHAP, v.] Punishment of Accessories to Felony. 131

justice, and may thereupon be punished in the same manner as any
accessory before the fact to the same felony, if convicted as an accessory,
may be punished ' {i).

Accessories After the Fact. — Sect. 3. 'Whosoever shall become an
accessory after the fact to any felony, whether the same be a felony at
common law or by virtue of any Act passed or to he passed, may be
indicted and convicted either as an accessory after the fact to the principal
felony, together with the principal felon, or after the conviction of the
principal felon, or may be indicted and convicted of a substantive felony,
whether the principal felon shall or shall not have been previously con-
victed or shall or shall not be amenable to justice, and may thereupon be
punished in Uke manner as any accessory after the fact to the same
felony, if convicted as an accessory, may be punished' (/).

Sect. 4. ' Every accessory after the fact to any felony (except
where it is otherwise specially enacted) (k), whether the same be a felony
at common law or by virtue of any Act passed or to he passed, shall be
liable, at the discretion of the court, to be imprisoned in the common
gaol or house of correction for any term not exceeding two years, with
or without hard labour ; and it shall be lawful for the court, if it shall
think fit, to require the offender to enter into his own recognisances,
and to find sureties, both or either, for keeping the peace, in addition
to such punishment : provided that no person shall be imprisoned under
this clause for not finding sureties for any period exceeding one year.'

As to Accessories Generally. — Sect. 5. ' If any principal offender shall
be in anywise convicted of any felony, it shall be lawful to proceed against
any accessory, either before or after the fact, in the same manner as if
such principal felon had been attainted thereof (l), notwithstanding such
principal felon shall die, or be pardoned, or otherwise delivered before
attainder ; and every such accessory shall upon conviction suffer the
same punishment as he would have suffered if the principal had been
attainted (m).

Sect. 6. ' Any number of accessories at different times to any felony,
and any number of receivers at different times of property stolen at
one time, may be charged with substantive felonies in the same indict-
ment, and may he tried together, notwithstanding the principal felon

(i) Taken from 7 Geo. IV. o. 64, s. 9 (E), (k) e.g., in the case of receivers of stolen

and 9 Geo. IV. c. 54, s. 1 (I). At common goods, 24 & 25 Vict. c. 96, s. 91, post,

law the accessory might be tried with the p. 1465. S. 4 is general, and may be

principal offender, but could not without held to overlap the similar provisions of

his consent be separately tried till the the Criminal Law Consolidation Acts of

principal offender had been convicted or 1861, pust, p. 133.

outlawed. 2 Hawk. c. 29, s. 45. (I) There is now no attainder on convic-

(j) Taken from 11 & 12 Vict. u. 46, a. 2. tion of treason or felony. 33 & 34 Vict.

At common law the accessory could not, c. 23, s. 1, post, p. 250.

except by his own consent, be tried until (m) Taken from 7 Geo. IV. <j. 64, s. 11 (E)

the guilt of the principal offender had been and 9 Geo. IV. c. 54, s. 25 (I). At common

ascertained by conviction or ■ outlawry, law an accessory could not be tried unless

unless they were tried together. 2 Hawk. the principal offender had been attainted,

u. 29, s. 45. Eost. 360. 1 Hale, 623. A so that if he stood mute of malice or

person indicted as a principal cannot be con- challenged peremptorily above the legal

victed as an accessory after the fact. R. v. number of jurors, or refused directly to

Fallon, L. & C. 217 (indictment for stealing answer to the charge, the accessory could

from the person). Richards v. R., 66 L. J. not be tried. Eost. 362. 1 Hale, 625. 1

Q.B. 459. St. Tr. 314.

K 2

132 Of Parties to the Commission of Crime. [book i.

shall not be included in the same indictment, or shall not be in custody
or amenable to justice ' (w).

Sect. 7. ' Where any felony shall have been wholly committed
within England or Ireland, the offence of any person who shall be an
accessory either before or after the fact to any such felony may be dealt
with, inquired of, tried, determined, and punished by any court which
shall have jurisdiction to try the principal felony, or any felonies com-
mitted in any county or place in which the act by reason whereof such
person shall have become such accessory shall have been committed ;
and in every other case the offence of any person who shall be an accessory
either before or after the fact to any felony may be dealt with, inquired
of, tried, determined, and punished by any court which shall have juris-
diction to try the principal felony or any felonies committed in any county
or place in which such person shall he apprehended or be in custody, whether
the principal felony shall have been committed on the sea or on the land,
or begun on the sea and completed on the land, or begun on the land
and completed on the sea, and whether within His Majesty's dominions
or without, or partly within His Majesty's dominions and partly without ;
provided that no person who shall be once duly tried either as an accessory
before or after the fact, or for a substantive felony under the provisions
hereinbefore contained, shall be liable to be afterwards prosecuted for
the same offence ' (o).

This section, like 7 Geo. IV. c. 64, s. 9, from whieh it was framed, appears
to extend only to accessories who at common law could be tried with
or after the principal, and not to make persons triable who could not
be tried at common law as accessories (p).

By the earlier part of sect. 7, where the principal felony is wholly
committed in England or Ireland, the accessory may be tried either in
the county where the principal felony may be tried, or in the county
where the act by which he became an accessory was done. But where
the principal felony is not committed wholly in England or Ireland, the
accessory may be tried by any court which has jurisdiction to try the
principal, or in any county in which the accessory may be apprehended
or be in custody. The object of this latter provision is to meet cases

(«.) Framed from 14 & 15 Vict. c. 100, become accessories at one and the same

s. 15, with the addition of the words in time and place.' C. S. G.

italics. ' The Committee of the Commons (o) Taken from 7 Geo. IV. c. 64, ss. 9,

who sat on 14 & 15 Vict. u. 100, struck out 10 (E) : 9 Geo. IV. o. 54, ss. 23, 24 (I); and

those words, not perceiving that they were 11 & 12 Vict. u. 46, h. 2. Under those enact-

the only important words in the clause : ments accessories might be tried by any

for there never was any doubt that separate Court which had jurisdiction to try the

accessories and receivers might be included principal, whether the principal felony had

in the same indictment under the ciroum- been committed on the sea or on land, and

stances referred to in s. 15 ; the doubt whether within the Queen's dominions or

was, whether they could be compelled to be without, and where the principal felony

tried together in the absence of the princi- was committed in one county, and the act

pal, where they separately became acces- by which the person became an accessory

series, or separately received. was done in another county, the accessory

'The marginal note to the section "several might be tried in either,

accessories, &c.," was erroneously altered (p) R. v. Russell, 1 Mood. 356, where it

after the Bill went to the House of Lords. was held that R. could not be tried under

It began " separate accessories," because 7 Geo. IV. c. 64, s. 9, as accessory before the

the clause applies only to accessories at fact to felo de se. Cf. R. v. Leddington,

different times. " Several " persons may 9 C. & P. 79, Alderson, B.

CHAP, v.] Punishment of Accessories to Felony. 133

where the principal felony may have been committed, either on land or
sea, out of England and Ireland. In such cases no court had jurisdiction
to try the principal until he was apprehended in England or Ireland, and
consequently where the principal in such cases had not been apprehended,
the accessory would not have been triable at all under the former enact-
ments. The words in italics cure this defect of the law.

As to Other Matters.— 24 & 25 Vict. c. 94, s. 9. ' Where any person
shall, within the jurisdiction of the Admiralty of England or Ireland,
become an accessory to any felony, whether the same be a felony at
common law or by virtue of any Act passed or to be passed, and whether
such felony shall be committed within that jurisdiction or elsewhere, or
shall be begun within that jurisdiction and completed elsewhere, or
shall be begun elsewhere and completed within that jurisdiction, the
offence of such person shall be a felony ; and in any indictment for any
such offence the venue in the margin shall be the same as if the offence
had been committed in the county or place in which such person shall
be indicted, and his offence shall be averred to have been committed
" on the high seas " ; provided that nothing herein contained shall alter
or affect any of the laws relating to the government of His Majesty's land
or naval forces ' (q).

Each of the Criminal Law Consolidation Acts of 1861 contains a section
in substantially identical terms providing that ' in the case of every
felony punishable under this Act, every principal in the second degree,
and every accessory before the fact, shall be punishable in the same
manner as the principal in the first degree is by this Act punishable ;
and every accessory after the fact to any felony punishable under this
Act [except murder] (r) shall be liable to be imprisoned for any term not
exceeding two years with or without hard labour ; and every accessory
after the fact to murder shall be liable, at the discretion of the Court, to
be kept in penal servitude for life or for any term not less than three years,
or to be imprisoned for any term not exceeding two years, with or
without hard labour . . .' (s). These enactments were passed, and came
into effect on the same day as the Accessories, &c., Act, 1861 {supra).

Similar provisions are made by the Piracy Act, 1837 (7 Will. IV.
& 1 Vict. c. 88), s. 4 and the Explosive Substances Act, 1883 (46 & 47
Vict. c. 3), s. 7.

Whenever it is doubtful whether a person is a principal or an accessory
before the fact, an indictment under sect. 1 (ante, p. 130), will be sufficient,
whether it turns out on the evidence that such person was a principal or
accessory before the fact, as well as where it is clear that he was either the
one or the other, but it is uncertain which he was. But cases of
accessories after the fact must be indicted as such, and not as principals.

(?) The object of the earlier part of this (r) These words are only in 24 & 25 Vict,

section is to remove a doubt, perhaps un- u. 100, s. 67. 24 & 25 Vict. u. 96, s. 98,

founded, whether a person who became an excepts receivers of stolen property,
accessory on the sea in the oases mentioned (s) 24 & 25 Vict. u. 96, s. 98 (larceny) ;

in it, was a felon. 7 Geo. IV. c. 64, s. 9, c. 97, =. 56 (malicious damage) ; o. 98, s. 49

contained a similar enactment. The latter (forgery) ; c. 99, o. 35 (coinage offences) ;

part of the section is framed from 7 & 8 c. 100, s. 67 (offences against the person).

Vict. c. 2. By sect. 10, ' nothing in this Act For the rest of the sections, which deal with

contained shall extend to Scotland, except as misdemeanors, see post, p. 139.
hereinbefore otherwise expressly provided.'

134 Of Parties to the Commission of Crime. [BOOK 1.

Where the offence of the principal is local, e.g., a burglary committed
in county A., if it is proposed to try the accessory in county B., it will be
prudent to include a count under sect. 2 (ante, p. 130), since sect. 1
only allows the accessory to be tried under it as a principal felon, i.e.,
in county A. (t) : although sect. 7 may be read as authorising indictment
and trial in county B., where the evidence shews that the accused became
accessory before the fact in that county.

Where an indictment stated that L. cast away a vessel, and that the
prisoner incited him to commit the said felony, it was objected that
the indictment was not properly framed as for a substantive offence,
under 7 Geo. IV. c. 64, s. 9 (rep.), but was in the form of an indictment
at common law against principal and accessory, and as the principal had
not been convicted, and was not on his trial, the accessory could not be
tried. But it was held that the description of the offence was not altered
by the statute. It might have been put in a different shape, but every
allegation in this indictment would have been included in any other (m).
So where M. was indicted for sending letters demanding money with
menaces, and H. with receiving, harbouring, &c., M., knowing her to
have committed the said felony, Erie, J., held that H. might be tried
before M. on this indictment under 11 & 12 Vict. c. 46, s. 2 (v), as that
clause was only intended to alter the course of trial, and not the mode
of describing the offence (w). In one case an indictment alleging that
a certain evil-disposed person feloniously stole, and that before the said
felony was done the prisoner did feloniously incite the said evil-disposed
person to commit the said felony, was held bad as being too uncertain (x).

Where the proceedings are against the accessory alone for receiving
stolen goods, the name of the principal need not be stated (y). Where
the proceedings are against both principal and accessory, the indictment
may contain counts for a substantive felony, e.g., receiving stolen goods,
without naming the principal, and upon such an indictment the receiver
may be convicted, although the person indicted as principal is acquitted (z).

A man cannot be convicted as accessory after the fact to murder on an
indictment for the principal offence (a). But a count charging a person
with being accessory before the fact may be joined with a count charging
the same person with being accessory after the fact to the same felony,
and the prosecutor cannot be compelled to elect upon which he will
proceed, and the party may be found guilty upon both (6). In one case

I) It might, however, be held that a. 1 {w) R. v. Hansill, 3 Cox, 597.

m effect makes every indictment charging (x) R. v. Caspar, 2 Mood. 101.

a person as principal in felony, charge him (y) R. v. Jervis, 6 C. & P. 156, Tindal,

also as accessory before the fact. In the C.J. R. v. Wheeler, 7 C. & P. 170, Cole-

6th edition of this work there is a discussion ridge, J. R. v. Caspar, 2 Mood. 101.

as to challenging the indictment by writ of ' (2) R. u. Pulham, 9 C. & P. 280, Gurney,

error (now abolished) or motion in arrest of B. R. v. Austin, 7 C. & P. 796, Parke and

judgment. It would seem that technical Bolland, Bs.

objections of this kind would be disregarded (a) R. ?). Fallon, L. & C. 217. Richards

under the Criminal Appeal Act, 1907, post, v. R., 66 L. J. Q.B. 459. R. v. Bubb, 70

Bk. xii. u. 4. J. P. 143 (C. C. R.).

(tt) R. V. WaUace, 2 Mood. 200, C. & M. (b) R. v. Blackson, 8 C. & P. 43, Parke,

200. But see R. v. Ashmall, 9 C. & P. 237. B., and Patteson, J. R. v. Tuffin, Surrey

(v) Repealed in 1861 (24 & 25 Vict. c. 95), Assizes, July, 1903, Darling, J. Arch. Cr.

but re-enacted as 24 & 25 Vict. ^. 94, s. 3, PI. (23rd ed.) 89, 1307 ; 19 T. L. R. 640.
ante, p. 131.

CflAp. v.] Pumshmeni of Accessories to Felony. 135

a party was indicted and tried both for receiving stolen goods,
and for receiving, harbouring and comforting, the felon, and was
convicted (c).

A count charged a prisoner with stealing certain cotton, and another
count charged him with receiving the property aforesaid, and it was
proved that the prisoner had solicited a servant to rob his master ; which
he did, and took the cotton to the prisoner, in whose possession it was
afterwards found, and he stated that he had got it from the servant,
and the jury found a general verdict of guilty ; on a case reserved, it
was held, that the jury might upon this evidence reasonably convict the
prisoner as an accessory before the fact upon the count for stealing, under
11 & 12 Vict. c. 46, s. 1 (d), and that there was no inconsistency in
finding that he was guilty of being an accessory before the fact, and that
he received the goods knowing them to have been stolen (e). But where
one count charged the prisoner with stealing sheep, and another with
receiving the said sheep knowing them to have been stolen, and the jury
found a verdict of guilty on both counts, the verdict and judgment was
set aside on the ground that this was an inconsistent verdict. The
Court assumed that the counts were inserted under 11 & 12 Vict. c. 46,
s. 3, and held that that statute only authorised the jury to convict either
of stealing or receiving, and not of both (/).

An indictment against an accessory should state that the principal
committed the offence ; and it is not sufficient merely to state, that he
was indicted for it (g).

Even at common law a man indicted as accessory to two or more
persons might be convicted as accessory to one (h).

(d) Repealed in 1861, and re-enacted as to convict of both. Suppose a written con-
24 & 25 Vict. u. 94, s. 1, ante, p. 130. fession of the prisoner proved both offences,

(e) R. V. Hughes, Bell, 242. how can a jury on their oaths acquit of
(/) R. u. Evans, 7 Cox, 151 (Ir.). The either ? In point of law there never was

Court said that, ' it might be possible that a any objection to the insertion of several

man may have stolen goods, and, after dis- distinct felonies in one indictment ; it was

posing of them, may afterwards get them no ground of demurrer, arrest of judgment

into his hands knowing them to be stolen, or error (1 Chit. Cr. L. 253), but it was mere

and be thus guilty of stealing and receiving matter for the discretion of the judge to put

the same goods.' Now, suppose, on the the prosecutor to elect on which charge he

trial of this indictment, the facts had been would proceed. 11 & 12 Vict. c. 46, s. 3,

as thus stated, it seems plain that the jury had taken away that discretion in this case,

ought to have found the verdict they did, and made a prisoner triable at the same

and upon the finding as it stood the Court time for stealing and receiving, and as the

were bound to presume that the evidence Act contains no prohibitory words, the

proved both counts. But the Court add, necessary consequence follows that the jury

' The statements in this record negative may convict of both if the evidence prove

such a state of facts ; ' and ' the unity of both offences. If it were otherwise, they

the offence in the ordinary language is put must find a false verdict either on the

beyond doubt, the stealing and receiving one or other count, and thereby save the

are of the same chattel, laid as the property prisoner from the punishment of one of

of the same person, on the same day.' This the two offences he had committed.

is a plain error ; the property must be the C. S. G.

same, and the time laid is perfectly imma- (g) Lord Sanchar's case, 9 Co. Rep. 114,

terial ; but even if it were material, a man 117a. R. ■;;. Read, 1 Cox, 65. R. v. But-

may on the same day steal goods at one terfield, 1 Cox, 39.

place, part with them, and receive them (h) Fost. 361, 9 Co. Rep. 119. 1 Hale,

again at another place. Agam, 11 & 12 624. 2 Hawk. c. 29, s. 46. Plowd. 98, 99.

Vict. c. 46, s. 3, only said, ' it shall be law- Fost. 361. See 24 & 25 Vict.c. 94, s. 6,

ful ' for the jury to convict either of stealing ante, p. 131.

136 Of Parties to the CofTimission of Crime. tBOoK 1.

Formerly if A. were indicted as principal and acquitted, lie might
have been afterwards indicted as accessory before the fact (i), and if
he were indicted and acquitted as accessory he might be indicted again
as principal (/). But now an acquittal as principal is a bar to an
indictment for being accessory before the fact ; for on an indictment
as principal an accessory before the fact may be convicted under 24 & 25
Vict. c. 94, s. 1 (ante, p. 130). If a man is indicted as principal and
acquitted, he may be indicted as accessory ' after the fact ' ; and if indicted
as accessory before the fact and acquitted, he may be indicted as accessory
after the fact (k). The Act of 1861 enacts, that no person who shall
be once duly tried for any offence of being an accessory shall be liable
to be again indicted or tried for the same offence (l).

An indictment charged four prisoners with feloniously inciting a
certain evil-disposed person unknown to forge a will ; another count
charged two of them with uttering the will, and three of them as accessories
before the fact to the uttering. The evidence did not shew any joint
act done by the prisoners, but only separate and independent acts at
separate and distinct times and places. After all the evidence on the
part of the prosecution had been given, one of the prisoners pleaded
guilty, and it was argued that all the other prisoners were entitled to
an acquittal ; that the indictment charged a joint inciting, and there
being no evidence of any joint acting, and one prisoner being convicted
the others could not be convicted jointly with her ; but Williams, J.,
overruled the objection (m).

Where the principal and accessory are tried together upon the same
indictment, the accessory may enter into the full defence of the principal,
and avail himself of every matter of fact and every point of law tending
to his acquittal ; for the accessory is in this case to be considered as
particeps in lite ; and this sort of defence necessarily and directly tends
to his own acquittal. Where the accessory is brought to trial after
the conviction of the principal, and it comes out in evidence upon the
trial of the accessory that the offence of which the principal was convicted
did not amount to felony in him, or not to that species of felony with which
he was charged, the accessory may avail himself of this, and ought to be
acquitted (w). For though it is not necessary upon such trial for the
prosecution to enter into details of the evidence on which the conviction
of the principal was founded, and the record of the conviction is sufficient
evidence against the accessory to put him upon his defence (o) ; yet
the presumption raised by the record that everything in the former

(i) R. V. Birohenough, Ry. & M. 477, decision wa.s wrong. Suppose the inoitings

overruling 1 Hale, 626 ; 2 Hale, 244, vide had each been in a different county, it is

post, Bk. xii. 0. ii. ' Autrefois Acguit.' quite clear that at common law (if triable

ij) See 1 Hale, 625. R. v. Gordon, 1 at all) each could only have been tried in

Leach, 515. 1 East, P.O. 35. the county where it took place, and this

(i) 1 Hale, 626. proves that they are separate and distinct

(I) 24 & 25 Viet. c. 94, s. 7, ante, p. 13?. felonies. And no rule is more clearly

Cf. 52 & 53 Vict. u. 63, s. 33, ante, pp. 4, (i. settled than that on a joint charge you

As to pleas of autrefois acquit, vide post, must prove a joint offence.' C. S. G. See

Bk. xii. 0. ii. ante, p. 131, as to including several acces-

(to) R. v. Barber, 1 C. & K. 442. R. i. sories in the same indictment.

Messingham, 1 Mood. 257, was cited in sup- {n) Post. 365. R. v. M'Daniel, 19 St. Tr

port of the objection. ' I have always been, 806.

and still am, clearly of opinion that this (o) But see R. u. Turner, post, p. 137.

ChAp. v.] Pumshmeni of Accessories to Felony. 137

proceeding was rightly and properly transacted must, it is conceived,
give way to facts manifestly and clearly proved ; and as against the
accessory the conviction of the principal will not be conclusive, being
as to him res inter alios acta (p). This was the opinion of Foster, J.,
upon it, counsel for an accessory was allowed to controvert the propriety
of the conviction of the principal by viva voce testimony, and to shew
that the act done by the principal did not amount to a felony, and was
only a breach of trust (q). And in a later case, it was also admitted
that the record of the conviction of the principal was not conclusive
evidence of the felony against the accessory, and that he has a right to
controvert the propriety of such conviction (r).

It seems that the accessory may insist upon the innocence of the
principal. Foster, J., says, ' If it shall manifestly appear, in the course
of the accessory's trial, that in point of fact the principal was innocent,
common justice seems to require that the accessory should be acquitted.
A. is convicted upon circumstantial evidence, strong as that sort of
evidence can be, of the murder of B. ; C. is afterwards indicted as accessory
to this murder ; and it comes out upon the trial, by incontestable evidence,
that B. is still living (Lord Hale somewhere mentions a case of this kind).
Is C. to be convicted or acquitted ? The case is too plain to admit of a
doubt. Or, suppose B. to have been in fact murdered, and that it should
come out in evidence, to the satisfaction of the Court and jury, that
the witnesses against A. were mistaken in his person (a case of this kind
I have known), and that A. was not, nor could possibly have been, present
at the murder ' (s).

Upon an indictment against an accessory, the guilt of the principal
cannot be proved by his confession, but must be proved aliunde, especially
if the principal be alive, and could be called as a witness ; and it seems
that even the conviction of the principal would not be admissible to
prove the guilt of the principal. The prisoner was indicted for receiving
sixty sovereigns, which had been stolen by R. A confession by R.,
made before a magistrate in the presence of the prisoner, in which she
stated various facts implicating the prisoner, was tendered in evidence.
Patteson, J., refused to receive anything said by R., respecting the
prisoner, but admitted what she said respecting herself only. R. had
been found guilty on another indictment, but had not been sentenced, and
might have been called as a witness. The judges (t) were of opinion that
R.'s confession was no evidence against the prisoner ; and many of them
appeared to think that had R. been convicted, and the indictment against
the prisoner stated not her conviction, but her guilt, the conviction would
not have been any evidence of her guilt, which must have been proved
by other means (u). Upon the authority of this case, where an accessory

(j)) Fost. 365. that where the principal has been convicted

(q) Smith's case, 1 Leach, 288. it is nevertheless on the trial of the acces-

(r) R. V. Proaser (mentioned in a note to sory competent to the defendant to prove

R. V. Smith, Z Leach, 290). Cor. Gould, J. the principal innocent. And see R. v.

See R. V. Blick, 4 C. & P. 377, Bosanquet, J. M'Daniel, 19 St. Tr. 806.

and R. v. M'Daniel, 19 St. Tr. 806. (t) Lyndhurst, C.B., and Taunton, J.,

(s) Fost. 367, 368 ; and see Cook v. were absent.

Field, 3 Esp. 134, wliere it was stated by («) R. v. Turner, 1 Mood. 347 : 1 Lew.

Bearcrof t, and assented to by Lord Kenyon, 119.

138 Of Parties to the Commission of Crime. [BOoK i.

before the fact to a murder was tried after the principal had been con-
victed and executed, Parke, B., ordered the proceedings to be conducted
in the same manner as if the principal was then on his trial {v). And
where two persons were indicted together, one for stealing and the other
for receiving, and the principal pleaded guilty. Wood, B., refused to
allow the plea of guilty to estabhsh the fact of the stealing by the principal
as against the receiver (w).

The prisoner was indicted as an accessory after the fact to M., who
was charged with sending letters demanding money with- menaces, and
Erie, J., held these letters admissible against the accessory as evidence
of acts done, for it was necessary to prove a demand of the money, and
these letters constituted the demand (x). But where R. was indicted
as accessory before the fact to felony by S., Maule, J., refused to admit
in evidence conversations with S. held in the absence of R. {y). Where,
on an indictment against H. and P. for murder, P. was tried first, and
H. was alleged to have fired the fatal shot in a duel, it was held that
it might be proved that H. on the morning before the duel had said, ' I
will shoot him as I would a partridge.' Erie, J., saying, ' This statement
is an act indicating malice aforethought in H., and that is a fact which
the jury have to ascertain. The intentions of a person can only be inferred
from external manifestations, and words are some of the most usual
and best evidence of intention. It is not a declaration after the act
done narrating the past, but it shows the mind of the party' [z). In
the same case, Erie, J., held that what H. said after the duel relating
to what passed at the spot where the duel took place was not admissible.

As to harbouring thieves, &c., in public-houses and brothels, see the
Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112, ss. 10, 11), as
amended by 39 & 40 Vict. c. 20, s. 5 (S. L. R.). These offences are punish-
able on summary conviction.

Sect. V. — Abettors in Misdemeanoe.

In the case of misdemeanor, no distinction in respect of procedure
or punishment has ever been made between parties or privies to the
offence who could, in the case of felony, be principals in the first or second
degree, or accessories before the fact. Indeed, there is no such person
as accessory in point of law to a misdemeanor (a).

The Accessories and Abettors Act, 1861, enacts as follows : —
Sect. 8. ' Whosoever shall aid, abet, counsel, or procure the com-
mission of any misdemeanor (6), whether the same be a misdemeanor
at common law or by virtue of any Act passed or to be passed, shall
be liable to be tried, indicted, and punished as a principal offender ' (c).

(v) R. V. Ratclifife, 1 Lew. 121. and abettor as a principal in the second

(w) Anon., cited in R. v. Turner, supra. degree.

(x) R. V. HansUl, 3 Cox, 597. (6) This is not limited to indictable mis-

(y) R. V. Read, 1 Cox, 65. demeanors. Du Cros v. Lambourne, ubi

{z) R. V. Pym, 1 Cox, 339. supra.

(a) R. V. Burton [1875], 13 Cox, 71, (c) Framed from 7 & 8 Geo. IV. c. 30,

Blackburn, J., cited and approved in Du s. 26 ; 9 Geo. IV. c. 56, s. 33 (I), &o., and

Cros V. Lambourne [1907], 1 K.B. 40, 43, really only a declaration of the common

Alverstone, C.J. Darling, J., at p. 47, it law on the subject (R. i/. Greenwood, 2 Den.

is submitted erroneously, spoke of an aider 453. Du Cros v. Lambourne, uhi supra.

CHAP, v.] Abettors in Mlsdcjiicaiior. 139

Each of tlje Criminal Law Consolidation Acts of 1861, except the
Coinage Offences Act, 1861, contains as to the misdemeanors punish-
able under such Act a clause in the terms of this section. See 24 & 25
Victrc. 96, s. 98; c. 97, s. 56; c. 98, s. 49; c. 100, s. 67. And there is a
similar provision in sect. 12 of the Foreign Enlistment Act, 1870 (33 &
34 Vict. c. 90) . Like provisions are made as to misdemeanors punish-
able on summary conviction by the Summary Jurisdiction Act, 1848
(11 & 12 Vict. c. 43), which enacts (s. 5), that 'every person who shall
aid, abet, counsel, or procure the commission of any offence which is
or hereafter shall be punishable on summary conviction, shall be liable
to be proceeded against and convicted for the saime, either together
with the principal offender, or before or after his conviction, and shall
be liable, on conviction, to the same forfeiture .and punishment as such
principal offender is or shall be liable (cZ).

In R. V. Bubb(e), on an indictment of T. and B. as principals in
misdemeanor, the jury returned a verdict against T. as a principal,
and against B. as accessory after the fact. A judgment of guilty, en-
tered on the latter verdict, was quashed by the Court for Crown Cases
Reserved. The Court declined to construe the verdict as meaning that
B. was a principal in the second degree, or an accessory at the time
when the misdeameanor was committed, and held that she was not in-
dictable under 24 & 25 Vict. c. 94, s. 8(/). Aiders and abettors in mis-
demeanors may be charged either separately or as principals (gf).

, In R. V. de Marny(7(,), it was held that a man could lawfullj'' be
convicted of aiding and abetting the publication in England of ob-
scene literature by sending it through the post, contrary to sect. 4 of
the Post Office Protection Act, 1884 (47 & 48 Vict. c. 76) (J), on evi-
dence that by inserting advertisements, which he knew to relate to
such literature, in a paper published in England, he had facilitated, or,
as the judges held, procured and caused the sending of such literature
from abroad into England through the post.

R. V. de Marney [1907], 1 K.B. 388); stated, ante, p. 131 note(;), as to

by which all persons, who would be ac- felonies.

cessories in felony, are principals in (/) Darling, J., suggested that the

misdemeanor, hence it follows that a statute did not preclude an indictment

person indicted for committing a mis- (qu. at common law) of an accessory

demeanor may be convicted, if it ap- after the fact to misdemeanor,

pear that he caused it to be committed, (p) Stacey v. Whitehurst, 18 C.B.

although he is absent when it is com- (N.S.) 4. Du Cros v. Lambourne

mitted. R. v. Clayton, 1 C. & K. 128. [1907], K.B. 40, 44, Alverstone, L.C.J.

R. V. Moland, 2 Mood. 27'6. (h) [1907], 1 K.B. 388.

(d) As to this section, see Benford (i) S. 4 is repealed and re-enacted
■c. Sims [1898], 1 Q.B. 641. as s. 63 of the Post Office Act, 1908 (8

(e) [1906] 70 J.P. 143. (C.C.R.h Edw. VII. c. 48).
The Court followed the rule already

( 139a )

CANADIAN NOTES.

OF PARTIES TO THE COMMISSION OF CRIME.

Sec. 1. — Preliminary.

Innocent Agent. — As to freedom from criminal responsibility, see
notes to the last preceding chapter.

Sec. 2. — Principals and Accessories before the Fact.

See Code sec. 69. (This section is subject to sees. 17 and 18 of the
Code, as to children.)

This section makes any person who does an act for the purpose of
aiding any other person to commit an offence or who abets any other
person in commission of an offence, a party to the offence committed
by such other person. To abet is to be personally or constructively pre-
sent at the commission of an offence, and to assist in the criminal act ;
but to aid is to help, or in any way to promote, facilitate or bring about
the accomplishment of any criminal purpose by another, and this may
be done without being present when the offence is perpetrated. Under
the old rule of law the abettor, or the person who was present inciting
or helping, was a principal in the second degree, while the person who,
being absent, counselled, helped or facilitated in any way the commis-
sion of an offence which was afterwards perpetrated was an accessory
before the fact. E. v. Roy, 3 Can. Cr. Cas. 472.

To counsel and procure a person to commit an offence constitutes
the counsellor or inciter a party to the offence, when it is committed;
and by this section he can be proceeded against as a principal. The
Queen v. Gregory, L.R. 1 C.C.R. 79.

The words aider, abettor, accessory and accomplice as applied to
crimes, are often used as having the same meaning. But they are by
no means synonymous. It is unlawful to aid or encourage the com-
mission of 'a crime. It is unlawful under certain circumstances
to conceal the commission of a crime. One who aids is, in ordinary
language, called an aider or abettor. An accessory is one who takes an
active, but subordinate, part. An accomplice, according to the ordin-
ary meaning of the word, would seem to imply one who not only takes
an active part, but positively aids in the accomplishment or completion
of the crime. R. v. Smith, 38 U.C.Q.B. 281, 287.

To make a person an ' ' aider and abettor ' ' he must have been pre-
sent actually or constructively. A person is present in construction

CHAP, v.] Principals and Accessories. 139&

of law aiding and abetting if with the intention of giving assistance,
he is near enough to afford it should occasion arise, or to favour the
escape of those who were immediately engaged ; he would be a principal
in the second degree. Per MacMahon, J., in E. v. Lloyd, 19 O.K. 352.

If a person sees that a crime is about to be committed in his pres-
ence and does not interfere to prevent it, that is not a participation
rendering him liable, without evidence that he was there in pursuance
of a common unlawful purpose with the principal offender. R. v.
Curtley, 27 U.C.Q.B. 613.

Aid rendered to the principal offenders after the commission of the
crime is alone insufficient to justify a conviction of the person so aided
as a principal under this section. E. v. Graham, 2 Can. Cr. Cas. 388.

On an indictment for, with three other persons, attempting to steal
goods in a store, evidence was given by an accomplice that prisoner
went with him to see a store, that prisoner went into the store to buy
something to see how th"e store could be got into, and that they and
others planned the robbery and fixed the date ; the prisoner saw them
off, but did not go with them; the others went out and made the
attempt, which was frustrated. It was held that as those actually
engaged were guilty of the attempt to steal, the prisoner was properly
convicted under 27 and 28 Vict. ch. 19, sec. 9, which enacted that who-
soever shall aid, abet, counsel or procure the commission of any mis-
demeanour shall be liable to be tried, indicted and punished as a prin-
cipal offender. R. v. Esmonde, 26 U.C.Q.B. 152.

A person who knowingly assists .a thief to conceal stolen money
which he is in the actual and proximate act of carrying away, by
receiving money for the purpose of concealing it, is guilty of aiding
and abetting in theft and may under sub-sec. (c) be convicted as a
principal. R. v. Campbell, 2 Can. Cr. Cas. 357.

Although the theft may be complete by the mere taking and carry-
ing away of stolen property the subsequent carrying of same to a place
of concealment by a person who did not participate in the taking, if
done with a guilty knowledge and as a continuation of and proximately
at the same time as the theft is an " aiding and abetting ' ' of the same.
Ibid.

An act done which may enter into the offence, although the crime

may be complete without it, may be considered as a continuation of the

' criminal transaction so as to make the participator an aider and

abettor, although his participation occurs only after such acts have

been done as in themselves would constitute the crime. Hid.

If the accused were not an aider and abettor or a principal in the
second degree in the commission of the theft, the circumstance that he
was an accessory before the fact by counselling and procuring the com-
mission of the theft, and therefore liable under sec. 69 to be convicted

139c Parties to Crime. [book i.

as a principal, does not prevent his conviction for the substantive
offence of afterwards receiving the stolen property knowing it to have
been stolen. Such an accessory before the fact who afterwards becomes
a receiver of the stolen property may be legally convicted both of the
theft and of "receiving." R. v. Hodge, 2 Can. Cr. Cas. 350. Note. —
The theft here was complete before the ' ' receiving. ' '

If it be contrary to law to sell liquor or any other article in a shop,
a sale by any clerk or assistant in his shop would prima, facie be the act
of the shopkeeper. It may be, if he could shew that the act of selling
was an isolated act wholly unauthorized by him, and not in any way in
the course of his business, but a thing done wholly by the unwarranted
or wilful act of the subordinate he might escape personal responsibility.
Where one II. swore that he got a bottle of brandy and paid for it one
dollar in K. 's shop, that a woman served him, and no one else was in
the store at the time, K. was convicted and the Court upheld the con-
viction. R.'v. King, 20 U.C.C.P. 247.

In R. v. Williams, 42 U.C.Q.B. 462, it was said that whereas both
employer and employed may be liable, yet both ought not to he pun-
ished for the same offence.

In R. V. King, 20 U.C.C.P. .246, the accused was convicted for
a sale in his absence by his son, the statute enacting a presumption of
authority by the father which the magistrate held was not rebutted by
the direct evidence of the father, on which he did not rely.

A broker who merely acts as such for two parties, one a buyer the
other a seller, without having any pecuniary interest in the transaction
beyond his fixed commission, and without any guilty knowledge on his
part of the intention of the contracting parties, to gamble in stocks
and merchandise, is not liable as an accessory. R. v. Dowd, 4 Can.
Cr. Cas. 170.

Common Purpose. — Where a' parcel containing revolvers was
thrown into a cab conveying prisoners, and the accused and at least one
of the other prisoners in the cab armed themselves with the revolvers
and formed the common intention of prosecuting the unlawful purpose
of escaping from lawful custody, by the use thereof, and of assisting
each other therein, the shooting by one of them of the constable in
charge was an offence committed by one of thenj in the prosecution of
such common purpose, and the commission thereof was or ought to
have been known to be a possible consequence of the prosecution of
such common purpose; each of them was, therefore, a party to such
offence, and the offence being murder in the actual perpetrator thereof,
was murder in the defendant, even if he were not an actual perpetrator
thereof, and he was properly found guilty by the jury of that offence.
R. V. Rice, 5 Can. Cr. Cas. 509, 4 O.L.R. 223.

Trade Mark Offences. — No servant of a master, resident in Canada,
who hona fide acts in obedience to the instructions of such master, and.

CHAP, v.] Accessories. 139d

on demand made by or on behalf of the prosecutor, gives full informa-
tion as to his master, is liable to any prosecution or punishment for
any offence defined in the part of the Code relating to trade mark
offences, sec. 495.

Liability of an Accessory before the Fact where the Principal does
not Follow the Preconcerted Plan. — Code sec. 70.

Commission of Crime other than that Commanded. — See Code sec.
70(2).

Accessory after the Fact.— See Code sees. 71, 76, 267, 574, 575, 849.

Misprision of Felony. — The Code makes no provision as to this.
The common law, therefore, is still in force concerning it. Burbidge
on Criminal Law, 508.

(140)

CHAPTER THE SIXTH.

of attempting, conspiring, and inciting to commit crimes.

Preliminary.

For the purposes of classification and punishment a distinction is
drawn between completed crimes in cases in which the whole of that
which was intended has been successfully done, and those preparations
to commit crimes which are punishable, although the complete offence
has not been accomplished, e.g., where there has been a conspiracy, an
incitement, or an attempt to accomplish the complete offence.

In the case of high treason, no distinction is drawn between the at-
tempt, incitement, or conspiracy and the full offence, such acts as could
in other cases be evidence of inchoate crime being treated as overt acts
of high treason (a) . All attempts, incitements, or conspiracies to commit
felony or misdemeanor are indictable as misdemeanors at common law
unless a statute directs that the particular form of attempt, &c., shall
be treated as a felony. In the case of an unsuccessful attempt or incite-
ment to commit crime, it would seem that the law as to aiders and
abettors {ante, p. 138) is applicable in the same manner as ia the case
of completed crimes, and when the attempt or incitement is made
felony -by statute the law as to accessories would seem to apply {ante,
p. 116).

A. — ^Attempts to Commit Crime.

It is a misdemeanor indictable at common law to attempt to commit
any felony(&), including felo de se{c), or any misdemeanor (d), whe-
ther such felony or misdemeanor is an offence at common law or is
created by statute (e). In certain cases which will be stated in later
chapters the attempt to commit an offence is by statute punishable in
the same manner as the completed offence, or is specifically punished
as a substantive felony or misdemeanor (ee).

{a) This rule is expressed by the (c) R. v. Burgess, L. & C. 258. E.

phrase, 'voluntas reputatur pro facto,' v. Doody, 6 Cox, 463.

and seems, by early writers, to have (<^) In R. v. Scofield [1784], Cald.

been extended to homicide. 'Sed haee ^97, 403, Lord Mansfield denied the

voluntas non intellecta fuit de voluntate validity of a distinction drawn between

nudis verbis aut scriptis propalata sed ^°^^^ '^"^^^ "^^^^^ ^^^^^^ !» '^P™'"'^ ^a

mundo manifestata fuit per apertum ^oSt^'a misVemeanor."^' '"^ ^°

factum.' 3 Co. Inst. 5. Fost. 193. (g) r „ Cartwright [1806], R. &

(6) R. V. Higgins, 2 East, 5, 21. R. r. io7n. R. v. Higgins, 2 East, 5, 8,

V. Kinnersley, 1 Str. 196. 1 Hawk. c. Grose, J. R. v. Welham, 1 Cox, 192,

25, s. 3. That attempts to commit Parke, B. R. v. Chapman, 1 Den. 432.

felony are indictable misdemeanors is R. v. Butler, 6 C. & P. 368, Patteson,

recognised by the statute empowering ' J. R. v. Roderick, 7 C. & P. 795. R. v.

Courts to award imprisonment with Martin, 2 Mood. 123.

hard labour for such attempts. 3 Geo. (ee) e.g., 8 Edw. VII. c. 45, s. 1(3),

IV. c. 114, post, p. 212. post, p. 973.

CHAP. VI.]

Attempts to Commit Crime.

141

No act is indictable as an attempt ^ to commit felony or misdemeanor,
unless it is a step towards the execution of his criminal purpose (/), and
as an act directly approximating to, or immediately connected with,
the commission of the offence which the person doing it has in view.
There must be an overt act intentionally done towards the commission
of some offence ; one or more of a series of acts which would constitute
the crime if the accused were not prevented by interruption (/), or physical
impossibility, or did not fail for some other cause in completing his
criminal purpose.

In E. V. McPherson (r/), it was held that a prisoner could not be properly
convicted of breaking and entering a building and attempting to steal
goods which were not there. It was at one time considered that when
the full offence was physically impossible, there could be no conviction
for the attempt. In R. v. Collins (h), it was held that a man who, with
intent to steal put his hand into an empty pocket, could not be convicted
of an attempt to steal. But in E. v. Brown {i), it was held that the
prisoner had properly been convicted of the statutory misdemeanor of

(/ ) Where a particular intent is an essen-
tial element in the definition of the com-
pleted crime, certain diiiiculties arise in
applying the rule as to attempts. If a man
in a sudden passion struck at another with
a knife, and his hand was arrested, it would
be an attempt to inflict grievous bodily
harm, and yet there might be no intent to
inflict grievous bodily harm, but the intent
might be to prevent apprehension or other-
wise. There is in short such an offence as
attempting to wound with intent to do
grievous bodily harm, and another offence of
attempting to inflict grievous bodily harm
without that particular intent. So also
by statute a felony is committed by any one
who throws a stone upon a railway line
with intent to obstruct an engine, and a
person might be found guilty of attempting
to commit that felony. But by the same
statute a misdemeanor is committed by
any one who obstructs an engine, and a
person might be found guilty of attempting
to obstruct an engine, although he had no
intent to obstruct it ; but if he has at-
tempted to do an act which would end if
uninterfered with in an offence within the
section, he has committed an attempt to
obstruct, and his attempt involves no doubt
an intentional act, but it is not a felonious

' intent to obstruct ' within the meaning of
the felony section, but an implied intent to
do what is forbidden by the misdemeanor
section. And see 1 Hawk. c. 55. Some
boys were indicted at Derby ( 1875) March
Assizes, for throwing the coping-stone off
a bridge upon the railway, with intent to
obstruct an engine. They were only ' lark-
ing,' and the jury negatived the ' intent to
obstruct.' They were also indicted for
obstructing, but as it happened the stone
fell so as not to obstruct the line, the learned
counsel for the prosecution submitted that
they might be found guilty of attempting
to obstruct ; but the learned commissioner
thought that as the jury had negatived the
intent to obstruct, tliey could not be found
guilty of the attempt. But it is submitted
that if the jury thought the prisoners wil-
fully tried to throw the stone upon the line,
they might have been found guilty of the
attempt, as the probable consequence of
throwing the stone on the line would be the
obstruction of the engine. MS. H. S. See
R. V. Holroyd, 2 M. & Rob. 339, ante,
p. 12.

(<7) D. & B. 199.

{h) L. & C. 471 : 33 L. J. M. C. 177.

(i) 24 Q.B.D. 357 : 59 L. J. M. C. 47.

American Note.

' ' Attempts ' are defined by Bishop as
follows : ' Where the non-consummation of
the intended criminal result is caused by an
obstruction in the way, or by the want of
the thing to be operated upon, if such an
impediment is of a nature to be unknown
to the offender, who used what seemed
appropriate means, the punishable at-
tempt is committed.' S. 752 (2) or (3).
' Whenever the laws make criminal one
step toward the accomplishment of an

unlawful object done with the intent or
purpose of accomplishing it, a person taking
that step with that intent or purpose, and
himself capable of doing every act on his
part to accomplish that object, caimot
protect himself from responsibility by
showing that by reason of some fact un-
known to him at the time of his criminal
attempt it could not be fully carried into
effect in the particular instance.' See C. v.
Jacobs, 9 AHen (Mass.), 274.

142 Attempting, Conspiring, &c., to Commit Crimes, [book i.

attempting to commit an unnatural ofEence, although on physical grounds
perpetration of the complete ofEence was impossible ; and R. v. Collins
was declared no longer law. And in E. v. Ring (/), a conviction for
attempt to steal from a woman unknown by hustling her and endeavour-
ing to find her pocket, was held good, and R. v. Collins was stated to be
overruled {h). In R. v. Ring there was also a count for assault with
intent to commit a felony.

A man may have in his mind a criminal purpose to commit a felony
or misdemeanor, but so long as that purpose rests in bare intention {]),
he does not become amenable to the criminal law (m). Attempting to
commit a crime is distinct from intending to commit it (w).

In Dugdale v. R. (o), the defendant was charged (1) with preserving
and keeping in his possession obscene prints, with intent unlawfully to
utter the same, and (2) with obtaining and procuring obscene prints with a
like intent. It was held that the first set of charges were bad, for they were
consistent with the possibility that the prisoner might have originally
had the prints in his possession with an innocent intention, and there
was no act shewn to be done which could be considered as the first step
in the commission of a misdemeanor ; but that the second set of charges
were good, for the procuring of such prints was an act done in the
commencement of a misdemeanor.

Questions have arisen whether the possession of materials or imple-
ments for coining or house-breaking for the purpose of committing these
offences, can without more be treated as criminal at common law. The
preponderating weight of the decided cases is against considering posses-
sion as such an act as would constitute the offence of attempting or
preparing for, the commission of the full ofEence. In R. v. Sutton (f),
the defendant was indicted for having coining instruments in his custody,
with intent to coin half guineas, shillings and sixpences, and to utter
them as and for the current coin, Lord Hardwicke, who tried the case,
doubted what the ofEence was. But the Court of King's Bench held
the offence to be a misdemeanor ; Lee, J., saying, that ' all that was
necessary in such a case was an act charged, and a criminal intention
joined to that act'(g'). This doctrine, if correct, does not appear to
have been applicable to the facts of the case as charged, which did not
amount to a criminal act by the defendant. It appears to have been

(?) Gl L. J. M. C. 29. Cf. R. v. Green- 1074.
away, 72 J. P. 389; 1 Cr. App. R. 31, (q) In this case there were cited, in sup-
attempting to ring the changes. port of the prosecution, a case of a convic-
ts) The judgment in R. v. Brown, which tion of three persons for having in their
also completely overrules R. v. McPherson, custody divers picklock keys with intent to
has been criticised as unsatisfactory. Prit- break houses and steal goods ; R. v. Lee,
chard. Quarter Sessions (2nd ed.), 900. Old Bailey, 1689 ; and a case of an indict-

(?) R. V. Sutton [1736], Gas. K.B. temp. ment for making coining instruments, and

Hardw. 370, 372, Lee, J. 2 Str. 1074. having them in possession with intent to

(ra) R. V. Eagleton, Dears. 515. ' The make counterfeit money. R. v. Bran-
devil himself cannot try the thought of a don. Old Bailey, 1698 ; and also a case
man,' Brian, G.J. Y. B. 17 Edw. IV. 2, where the party was indicted for buying
pl- 2. counterfeit shillings with an intent to utter

(n) R. V. McPherson, D. & B. 199, Cook- them in payment. R. v. Cox, Old Bailey,

bum, C.J. 1690. As to the unlawful possession of

(o) 1 E. & B. 435. coining implements, see post, p. 365,

iv) Cas, K,B. temp, Hardw. 370. 2 Str. ' Coinage Offences,'

CHAP. VI.] Attempts to Commit Crime. 143

accepted by Lord Mansfield as good law in R. v. Scofield (r) : but R. v.
Sutton was disapproved in R. v. Stewart (s), where it was held that
having counterfeit sUver in possession with intent to utter it as good is
no offence, there being no criminal act done. The prisoner had been
found guilty of unlawfully having in possession counterfeit silver coin
with intent to utter it as good ; but the judges were of opinion that
there must be some act done to constitute a crime, and that the having
in possession only was not an act (s).

Legislation has been passed with respect to persons having implements
for house-breaking, &c., in their possession with a, felonious intent. The
Vagrancy Act, 1824 (5 Geo. IV. c. 83, s. 4), makes persons having in their
possession implements of house-breaking or weapons with intent (t) to
commit any felonious act, liable to summary conviction as rogues and
vagabonds. Sect. 58 of the Larceny Act, 1861 (24 & 25 Vict. c. 96),
makes persons armed with offensive weapons, or in possession of imple-
ments of house-breaking, guUty of a misdemeanor. And in some instances
an act, accompanied with a certain intent, has been made a felony by
particular statutes ; as by sect. 38 of the same Act, the severing with
intent to steal the ore of any metal, or any coal, &c., from any mine,
bed, or vein thereof, is made felony punishable by two years' imprison-
ment (with or without hard labour). And by sect. 14 of the Malicious
Damage Act, 1861 (24 & 25 Vict. c. 97), damaging certain articles
in the course of manufacture, with intent to destroy them, and entering
certain places with intent to commit such offence, is made felony.

In R. V. Hensler (u), the defendant was held to have been rightly con-
victed of attempting to obtain money by false pretences contained in a
begging letter, though he had, in fact, received money in answer to a
letter from the recipient who knew the pretence to be false (v).

In R. V. WiUiams (w), it was held that a boy under fourteen could
not, by reason of his age, be convicted of a felony under sect. 4 of the
Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69) ; but Hawkins,
J., with the apparent concurrence of Cave, J., seems to have been pre-
pared to hold when the case arose that the boy might, under sect. 9
of the Act, be convicted of an attempt to commit a felony within sect. 4.
Coleridge, L.C. J., seems to have been of a contrary opinion (x).

The question in each case is whether the acts rehed on constituting
the attempt were done with intent to commit the complete offence, and
as one or more of a series of acts or omissions directly forming some of
the necessary steps towards completing that offence, but falling short

(r) [1784] Cald. 397, 403. tempt to steal from a man who is too strong

(a) [1814] B. & B. 288. B. v. Heath to permit you." Mellor, J., said, ' An at-

[1810], B. & B. 184. As to this offence, tempt may be made to steal a watch that

see 24 & 25 Vict. c. 99, ss. 10, 11, post, is too strongly fastened by a guard. Here

pp. 357, 358. the prosecutor had the money, and was

(t) See 34 & 35 Vict. c. 112, .i. 7 ; 54 & capable of being deceived, and the prisoner

55 Vict. c. 69, 3. 6. attempted to deceive him.' Kelly, C.B.,

(m) [1870] 11 Cox, 570 (C. C. B.). In B. v. said, ' So soon as ever the letter was put in

Mills [1857], 7 Cox, 263 (C. C. B.), it has the post the attempt was committed.'
been decided that a conviction for obtaining (w) [1893] 1 Q.B. 320.

money by false pretences cannot be had if {x) See the discussion of this case in B. v.

the prosecutor parted with his money Angus [1907], 24 N. Z. L. B. 948, Denni-

knowing the pretences to be false. ston, J.

{v) Blackburn, J., said, ' You may at-

144 Attempting, Conspiring, &c., to Commit Crimes, [book i.

of completion by the intervention of causes outside the volition of the
accused, or because the offender of his own free will desisted from com-
pletion of his criminal purpose for some reason other than mere change
of mind.

In R. V. Eagleton {y), a baker was indicted for attempting to obtain
money by false pretences. He had contracted with a poor law authority
to deliver loaves of a certain weight to poor people, in exchange for tickets
given to them by the relieving officer, which the baker was to retain on
delivering the loaves, and to present weekly to the relieving officer as
vouchers for payment, with a statement of the amount of the loaves.
The amount shewn by the statement and vouchers was credited to the
baker, and was payable at a later date, subject to a right to make deduc-
tions for breach of contract. The defendant had delivered to the poor
short weight against the tickets presented, and returned to the relieving
officer the tickets received. It was held that he was guilty of attempting
to obtain money by false pretences by fraudulently obtaining credit
with the relieving officer for a weight of bread in excess of that delivered,
on the ground that the baker had done the last act depending on him-
self towards obtaining payment, and that that act was sufficiently proxi-
mate to (and) or not too remote from the offence of obtaining money by
false pretences {z).

In R. V. Cheeseman (a), the prisoner was servant to an army meat
contractor, who, in the course of his duties, took meat daily into camp,
where it was weighed by a quartermaster-sergeant, for distribution
to the troops, and the surplus meat, after satisfying the day's require-
ments, was to be taken back to the contractor. The prisoner fraudulently
falsified the scales used so as to give the troops short weight, and to leave
a larger surplus for return to the contractor. His intention was to
appropriate the difference between the just surplus and the actual surplus.
The fraud was detected and he absconded. It was held that he was guilty
of an attempt to steal the difference, as he had done all that was necessary
to complete his criminal purpose, except to carry away and dispose of the
proceeds of the fraud, which he would have done if not interrupted by
detection of his scheme.

In R. V. Taylor (6), a man was tried for the statutory felony of attempt-
ing to set fire to a stack of corn, on proof that he had asked for work and
money of the prosecutor, and, on refusal, threatened to burn him up,
and that he was then seen to go to a stack, and kneeling down close to
it to light a lucifer match, though, on seeing that he was watched, he
blew out the match and went away. Pollock, C.B., ruled that to warrant
a conviction, the act must be one tending directly and immediately to
the execution of the principal crime, and done under such circum-
stances that the prisoner had the power of carrying his intention into
execution (c).

Certain acts done in furtherance of a criminal purpose have been held

(y) [1855] 24 L. J. M. C. 158, argued be- (a) 31 L. J. M. C. 89.

fore the fifteen judges; judgment of the (h) [1859], 1 F. & F. 511, Pollock, C.B.

Court delivered by Parke, B. (c) The laat part of the ruling must be

(z) The Court were in some doubt whether read subject to R. v. Brown, ante, p. 141.
the attempt was to obtain credit or cash.

Chap, vi.j Attempts to Commit Crime. 145

to be indictable misdemeanors, which cannot exactly be described as
attempts, but are closely analogous. Such are abandoning a child without
food with intent that it may die (d) ; making a false oath before a surro-
gate to obtain a marriage licence (e) ; procuring dies for the purpose of
counterfeiting coin (/) ; procuring indecent prints for the purpose of
publishing them (g) ; handing poison to A., and endeavouring to get A.
to administer it to B. {h), attempting to bribe a Cabinet minister and mem-
ber of the Privy Council to give the defendant an of&ce in the Colonies (i) ;
promising money to a member of a corporation to vote for the elec-
tion of B. as mayor (j) ; attempting, by bribery, to influence a juryman
in giving his verdict (k) ; or a judge in his decision (I) ; or attempting
to bribe a customs officer (m). Certain acts intended or calculated to
pervert, delay, or defeat the course of justice which are regarded as
indictable (n), as being attempts to the prejudice of the community (o),
are separately treated, post, Book VII. p. 537. A fraudulent attempt
to get a conviction set aside by means of false declarations has, in
Australia, been held to be a misdemeanor at common law (p), on the
authority of O'Mealy v. Newell (q).

The cases where an attempt to commit crime is a misdemeanor at
common law are distinct from those in which by statute an act is made
felony, if done with a certain intent, but a misdemeanor if done without
such intent. The criminal quality of the completed act in such cases
varies with the intent with which it was done.

Whether the attempt is a common-law misdemeanor or a statutory
offence, the rules already stated as to what is sufficient to constitute
an attempt apply, unless the statute dealing with the subject-matter
provides another criterion (r).

Attempts to murder, which at common law are misdemeanors, are
dealt with as felonies in unnecessary detail in ss. 11-15 of the Offences
against the Person Act, 1861 (s).

On an indictment for an attempt it is unnecessary to negative the
commission of the fuU offence (t) : and it is for the defendant to shew, if
he please, that the minor was merged in the greater offence.

(d) R. u. Renshaw, 2 Cox, 285. It is exhibited,
doubtful whether this could be brought {I) 3 Co. Inst. 147.

within 24 & 25 Vict. u. 100, s. 15. (m) R. v. Cassano, 5 Esp. 231.

(e) R. V. Chapman, 1 Den. 432. The {») 1 Hawk. c. 21, 3. 15. 2 East, P.O.,
offence is not perjury, and it is not a statu- p. 816.

tory offence to obtain a marriage licence by (o) R. v. Higgins, 2 East, 5, Lawrence,

a false oath. See posi, p. 528. J. R. v. Vreones [1891], 1 Q.B. 360,

(/) R. V, Roberts, Dears. 539 ; 25 L. J. an indictment for fabricating evidence for

M. C. 17. The prisoner was held indictable the purpose of a contemplated arbitration,

for a misdemeanor, although his acts in Vide post, p. 530.

furtherance of his criminal purpose were {p) White v. R. [1906], 4 Australian Com-

not sufficiently proximate to the complete monwealth L. R. 152.

offence to s>ipport an indictment for an (q) 8 East, 374.

attempt to execute it. Seepost,-p.SQ5etseq. (r) See R. v. Duckworth [1892], 2 Q.B.

ig) Dugdale w. R., 1 E. & B. 435. 83, as to what is an attempt to shoot. Vide

{h) R. V. WilHams, 1 Den. 39. post, p. 842.

(«■) R. V. Vaughan, 4 Burr. 2494. See {s) Post, p. 839.

post, p. 627, ' Bribery.' (t) None of the precedents of indict-

(j) R. V. Plympton, 2 Ld. Raym. 1377. ments for attempts to ravish or rob contains

(k) R. V. Young, 2 East, 14, 16 cit. In anysuch negative averment. See 3 Chit. Cr.

this case a criminal mformation was L. 807, 816. Archb. Cr. PI. (23rd ed.), 1295.

VOL. I. L

146

Of Criminal Conspiracy.

[BOOK 1.

B. — Of Criminal Conspiracies.

Criminal conspiracy consists in ' an unlawful combination of two
or more persons (u), to do that which is contrary to law, to cause a
public mischief (v), or to do that which is wrongful and harmful towards
another person ' (w), or to do a lawful act for an unlawful end (x), or
by unlawful means {y), or wrongfally to prejudice a third person (2).
It has even been said that if several illegally concur in doing an act
with a common object, they may be guilty of conspiracy, though they
were previously unacquainted with each other (a). But few things are
left so doubtful in the criminal law as the point at which a combination
of several persons for a common object becomes unlawful (b).

The best established definition of the offence is that given by Willes, J.,
on behalf of all the judges in Mulcahy v. R. (c), and accepted by the
House of Lords in that (d) and subsequent cases (e).

' A conspiracy consists not merely in the intention of two or more,
but in the agreement of two or more to do an unlawful act, or to do a
lawful act by unlawful means. So long as a design rests in intention
only it is not indictable. When two agree to carry it into effect, the
very plot is an act in itself, and the act of each of the parties, promise
against promise, actus contra actum, capable of being enforced if lawful,
punishable if for a criminal object or for the use of criminal means (/).
And so far as proof goes conspiracy, as Grose, -T., said in R. v. Brisac (g),

(u) Husband and wife are regarded as
one person and as incapable of conspiring
together (1 Hawk. c. 72, o. 8), though they
can severally or jointly conspire with other
persons. B. v. Whitehouse, 6 Cox, 38,
Piatt, B.

(w) R. V. Brailsford [1905], 2 K.B. 730,
745 {post, p. 151) and cases there cited, and
see R. V. Boulton, 12 Cox, 87.

(w) Quinn v. Leathern [19011, A.C. 495,
528 : 70 L. J. P.C. 76, Ld. Brampton. In
R. V. Vincent, 9 C. & P. 91, Alderson, B.,
laid it down that conspiracy is ' a crime
which consists either in a combination and
agreement by persons to do some illegal
act, or a combination and agreement to
effect a legal purpose by illegal means.'
In O'ConneU w. R. (11 CI. & F. 155 ; 5 ,St. Tr.
(N. S.) 1), Tindal, C.J., in delivering the
opinion of all the judges, said : ' The crime
of conspiracy is complete if two, or more
than two, should agree to do an illegal
thing ; that is, to effect something in itself
unlawful, or to effect, by unlawful means,
something which in itself may be indifferent
or even lawful.' In R. v. Seward, 1 A. &
E. 713, Denman, C.J., said, ' An indictment
for conspiracy ought to show either that it
was for an unlawful purpose, or to effect a
lawful purpose by unlawful means ; ' but
in R. V. Peck, 9 A. & E. 686, upon thi?
dictum being cited he said, ' I do not think
the antithesis very correct ; ' and in R. i'.
King, 7 Q.B. 782, he said, ' The words " at

least " should accompany that statement.'
In R. V. Jones, 4 B. & Ad. 345; 1 N.
& M. 78, however, several judges gave a
similar definition of the crime of conspiracy.
C. S. G.

(x) ' With a corrupt intent,' 8 Mod. 320.
1 Wils. (K.B.) 41. See B. v. Delaval, 3 Burr.
1434, 1439.

(«/) See Mulcahy v. R., infra.

(2) 1 Hawk. c. 72, a. 2. Quinn v. Leathern
[1901], A.a 495, n. Unless the word
' wrongfully ' means criminally, the author-
ities cited by Hawkins do not support his
proposition. Wright on Conspiracy, p. 12.

(a) By Lord Mansfield in the case of the
prisoners in the King's Bench, Hil. T. 26
Geo. III. 1 Hawk. 0. 72, s. 2, in the notes.
See the instance given in R. v. Parnell, 14
Cox, 508, 515, post, p. 174.

(6) 3 Chit. Cr. L. 1130.

(d) I.e. 374, Lord Cairns.

(e) Quinn v. Leathern [1901], A.C. 495,
529, Lord Brampton. See R. v. Brailsford
[1905], 2 K.B. 730, 746.

(/) A civil action does not lie for a con-
spiracy unless it is put into execution and
causes damage. 9 Co. Rep. 57. W. Jones,
93. Savile v. Roberts, 1 Ld. Raym. 378.
1 Wms. Saund. 229b, 230. Barber v.
Lesiter, 7 C. B. (N. S.) 175. Quinn v. Lea-
them [1901], A.C. 495, 510, Lord Mao-
naghten : 542, Lord Lindley.

(y) 4 East, 171.

CHAP, vi.] Gist of the Offence. 147

is generally " a matter of inference deduced from certain criminal acts
of the parties- accused, done in pursuance of an apparent criminal purpose
in common between them" (k). The number and the compact give weight,
and cause danger, and this is more especially the case in a conspiracy
like that charged in this indictment.' The gist of the offence of conspiracy
then lies, not in doing the act, or effecting the purpose for which the
conspiracy is formed, nor in attempting to do them, nor in inciting others
to do them, but in the forming of the scheme or agreement between
the parties (*). The external or overt act of the crime is concert by
which mutual consent to a common purpose is exchanged {j). In an
indictment, it suffices if the combination exists and is unlawful, because
it is the combination itself which is mischievous, and which gives the
public an interest to interfere by indictment (/c).

In order to make any person criminally responsible for conspiracy,
it is essential to establish that he entered into an agreement falling within
the above definition with one or more other persons (Z), whether charged
with him in the indictment or not, and whether known or unknown (m).
So where two persons were indicted for conspiring together (no other
parties being alleged), and one was convicted, and the jury disagreed
as to the other, it was held that the conviction of the one could not
stand (w) ; and where three were charged jointly with conspiring together,
and one pleaded guilty, but the other two were tried and acquitted, it was
held that the sentence imposed on the one who had pleaded guilty could
not stand (o). As a matter of procedure it would seem that if A. be
indicted and tried alone for conspiring with others, he could be lawfully
convicted, though the others referred to or included in the indictment
had not appeared or pleaded (p), or were dead before {q) or after the

(h) The question involved was whether 1141. In R. v. Heme, cited in R. v. Kin-
a conspiracy, charged and proved, was an nersley, 1 Str. 193, 195, the indictment

overt act of felony within the Treason alleged that Heme with A., et multis

Felony Act, 1848 (11 & 12 Vict. o. 12). did conspire to accuse a man of an offence ,

(i) 1 East, P.O. 462. R. v. Best, 2 Ld. the grand jury ignored the bill as to A., but

Raym. 1167 : 6 Mod. 185. R. v. Spragg found it as to Heme, who was convicted ;

[1760], 2 Burr. 993 (conspiracy to indict for and it was moved in arrest of judgment,

a capital offence). R. v. Rispal [1762], 3 that there being an ignoramus as to A.,

Burr. 1320, where conspiracy to injure a Heme could not be guilty of conspiring

man by a false charge was held unlawful with him ; but the whole Court held that

and ". trespass tending to a breach of the it was sufficient, it being found that he,

peace. See O'Connellv. R., 11 CI. & F. 155: cum multis aliis, did conspire, and that it

5 St. Tr. (N. S.) 1. might have been laid so at first.

(j) Sir W. Erie on Trade Unions, p. 31, (n) R. v. Manning, 12 Q.B.D. 241 : 53

adopted by Bruce, J., in Jl. o. Plummer L. J. M. C. 85.

[1902], 2 K.B. 339, 348. And see Mulcahy (o) R. v. Plummer, [1902], 2 K.B. 339 :

V. R., L. R. 3 H. L. 306, 328, Lord Chelms- 71 L. J. K.B. 805, Wright, J., approving a

f°"l- dictum of Cockburn, C.J., in Robinson v.

(k) Mogul SS. Co. V. McGregor, 21 Q.B.D. Robinson, 1 Sw. & Tr. 362, 392, 393. The

544, Coleridge, C.J. In certain of the Court might have allowed the plea of

older authorities reference is made to a bare guilty to be withdrawn at any time before,

conspiracy, unexecuted, as criminal. See judgment. R. v. Plummer, at pp. 347,

R. V. Rispal, 3 Burr. 1320. 1 Lev. 62, 125. 349.

1 Ventr. 304. 1 Ld. Raym. 379. 1 Salk. (p) R. v. Kinnersley, 1 Str. 193.

174. ^1 Str. 193. T. Raym. 417. (q) R. «. Nichols, 2 Str. 1227: better

(/) ' One alone cannot conspire.' Hari- reported 12 East, 412n. A conspiracy by

son V. Errington [1565], Poph. 202. Cf. R. N. with B., who had died before indictment

V. Thorp, 5 Mood. 221 : Comb. 228. found.

(m) 1 Hawk. o. 72, s. 8. 3 Chit. Cr. L.

148

Of Criminal Consfiracy.

[BOOK 1.

indictment was preferred {r), or before pleading not guilty (s), or were
subsequently and separately tried. But it is not settled whether, in
cases of separate trials of the conspirators, the acquittal of those tried
later would avoid the conviction of one earlier tried and convicted for
the same conspiracy (<). When the indictment alleges a conspiracy
between several, a verdict that two or more, but not all, entered into
the conspiracy will stipport a conviction (m).

In E. V. Sudbury {v), where only two out of three were found guilty
of riot and there was no allegation of cum aliis, judgment was arrested.
Holt, C.J., said, ' If the indictment had been that the defendants, with
divers other disturbers of the peace, &c., had committed this riot and
battery, and the verdict had been as in this case, the King might have
had judgment.'

In E. i;. Thompson {w), all the counts of the indictment alleged that A.,

(r) R. V. Scott [1761], 3 Burr. 1262. An
indictment of four for riot. Conviction of
two held good, though the other two had
died before trial.

(s) R. V. Kenriok, 5 Q.B. 49.

(t) B. V. Plummer [1902], 2 K.B. 339,
344. It is said that where one of several
defendants charged with a conspiracy has
been acquitted, the record of acquittal is
evidence for another defendant subse-
quently tried. R. v. Home Tooke, 1 Chit.
Burn. 823. See note (w), infra.

(m) R. v. Quinn, 19 Cox, 78 (Ir.), Fitz-
gibbon, L.J. But see O'Connell v. R., 11
CI. & K. 155 : 5 St. Tr. {N. S.) 1.

(v) 1 Ld. Raym. 484: 12 Mod. 262.
Cited and adopted in R. v. Plummer
[1902], 2 K.B. 339, 343, Wright, J.

(w) 16 Q.B. 832, Erie. J., diss. Camp-
bell, C.J., Patte.son, J., and Coleridge, J.,
rested the decision on the ground that
' other persons ' must mean persons other
than Tillotson and Maddock ; and that the
acquittal of those defendants, therefore,
must have the same effect as if Thompson,
Tillotson and Maddock had alone been
charged with the conspiracy ; in which
case it was clear Thompson must have been
acquitted. Campbell, C.J., said : ' The
acquittal of two involves the acquittal of
the third,' and Patteson, J., said : ' I cannot
see how Thompson can be convicted of eon-
spiring with persons unknown ; upon the
evidence he conspired, if at all, with Tillot-
son or Maddock.' Erie, J., was of opinion
that, ' according to the rules of pleading,
this charge, as to each individual, must be
construed as if he were charged solely, and
it follows that the acquittal of the two be-
comes immaterial ; and the verdict may be
found in any terms comprised in the indict-
ment. The finding may be that Thompson
conspired with Tillotson, or with Maddock,
or with other persons unknown ; and so
there may be similar findings as to the
others. Therefore if any one be found
guilty, the verdict must stand as against
him ; the judge must take the opinion of

the jury.'as to each, whatever may be the
finding as to the others. " Are you of
opinion that Thompson conspired with
Tillotson ? " " No." " With Maddock ? "
" No. But we are satisfied that he con-
spired with some one ; we do not know
whom." The conspiracy, then, cannot be
truly predicated of either Tillotson or Mad-
dock, because the jury do not know which of
these two was the conspirator ; they do, how-
ever, know that one of them was ; so that
against Thompson, the verdict should be that
he conspired with some one, it is not known
with whom.' R. v. Thompson was accepted
as good law in R. v. Plummer [1902], 2
K.B. 339, 343, 345, and the criticisms on
R. V. Thompson by Mr. Greaves, in the 4th
edition of this work (vol. iii. p. 146), were
treated as ill-founded in law. He said : ' It
is quite an error to suppose that the word
" other," as used in indictments, means
"different from." It is a mere word of form,
used like " further " and " afterwards."
See R. 0. Downing, 1 Den. 52. If the in-
dictment had contained three counts, the
first alleging a conspiracy between Thomp-
son and Tillotson, the second between
Thompson and Maddock, and the third
between Thompson and divers other per-
sons to the jurors unknown, and the facts
had been as in this case, the verdict must
have been not guilty on the first two counts,
and guilty on the third ; and yet each count
in this indictment was in point of law
exactly the same as such three counts.'

'The authorities seem to show, that if
several persons are indicted for a riot or a
conspiracy, and the jury acquit all except
two in riot and one in conspiracy, the latter
must also be acquitted. It is very confi-
dently submitted that these authorities
rest on a fallacy, viz., that because some
are acquitted, therefore the others could
not have been guilty of the offence together
with those that are acquitted. The acquit-
tal of A. necessarily amounts to no more
than that A. was not proved to be guilty.
Suppose A. and B. are indicted for a con-

CHAP. VI.] Gist of the Offence. 149

B., and C. conspired, &o., ' with divers other persons to the jurors aforesaid
unknown.' The jury stated their opinion, upon the evidence, to be
that A. had conspired with either B. or C, but that they did not know
with which. No evidence was given of participation by any other party ;
and thereon the judge directed a verdict of not guilty as to B. and C,
and a verdict of guilty as to A. ; and it was held that as B. and C. had
been acquitted, the verdict could not be supported against A.

In R. V. Cooke [x), on an indictment against four for a conspiracy,
two pleaded not guilty ; one pleaded in abatement, to which plea there
was a demurrer ; and the fourth never appeared. Before the argument
of the demurrer the record was taken down for trial, and one of the
defendants who had pleaded not guilty acquitted, and the other found
guilty of conspiracy with him who had pleaded in abatement. The
demurrer was afterwards argued, and judgment of respondeat ouster
given, whereupon a plea of not guilty was pleaded. The Court of King's
Bench held that judgment might be pronounced upon the one found
guilty before the trial of the other ; for although it was possible that
the latter might be acquitted, yet the Court were not warranted in coming
to the conclusion that that would be so against the verdict that had been
found, or in forbearing to pronounce judgment upon the defendant found
guilty (x). In R. ■;;. Ahearne {y), where three prisoners were indicted
in Ireland for the (then capital) offence of conspiring to murder, and,
having refused to join in their challenges, one of them was tried alone
arid convicted ; it was held, on a case reserved, that he had been properly
tried and convicted, and that there was no ground for respiting or
arresting the judgment.

In R. V. Quinn (z), also an Irish case, the indictment was against
eight persons for conspiring together to defraud a railway company by

spiraoy, and A. has made a written confes- dale, J., said, ' If the other defendant shall

sion that he did conspire with B., and B. hereafter be acquitted, perhaps this judg-

with him, but the evidence fails as against ment may be reversed.' Mr. Greaves

B., is A. to be acquitted? Suppose, in (Russell on Crimes (4th ed.), vol. iii. p. 146)

such a case, A. had pleaded guilty, is his queried this ruling on grounds to a large

plea to be set aside because B. for want of extent equally applicable to the case of a

evidence is acquitted ? This shows that in joint trial, saying : ' Such acquittal would

fact one may be guilty, though the rest are not necessarily show that the verdict of

acquitted, and that the doctrine in question guilty on the former trial was wrong, as

rests on an entire fallacy.' This reasoning witnesses might be dead or absent who

has been rejected as involving the danger- were examined on the former trial, or the

ous theory that a verdict of not guilty does one defendant might have been convicted

not fully establish the innocence of the on his own confession, which would not be

person to whom it relates. E. v. Plummer admissible against the other defendant.'

[1902], 2 K.B. 339, 349, Bruce, J. See R. But in R. v. Plummer [1902], 2 K.B. 239,

«. Stoddart [1909], 25 T. L. R. 612. Again 345, Wright, J., considered the criticism

it is conceived that a still more fatal objec- not justified by the authorities already

tion to the doctrine exists. It is appre- stated in the text.

hended that the acquittal of B. can in no (y) [1852] 6 Cox, 0 : 2 Ir. Rep. C. L. 381.

case be admissible in evidence for A. It is In R. v. Plummer [1902], 2 K.B. 339, 344,

obvious that the conviction of A. would not Wright, J., seems to have wrongly inferred

be evidence against B. And the rule is, from the fact that the prisoners were sen-

that ' no record of a conviction or verdict tenced to death, that the indictment was

can be given in evidence, but such whereof for murder.

the benefit may be mutual.' See R. v. (z) [1898] 19 Cox, 78, Fitzgibbon, L.J.

Warden of the Fleet, Holt, 133 ; and other He distinguished O'Connell v. R., 11 CI. &

eases, 2 Phill. Evid. o. 1, s. 1. F. 155 : 5 St. Tr. (N. S.) I.
{x) 5 B. & C. 538. 7 D. & R. 673. Little-

150 Of Criminal Conspiracy. [book i.

stealing and selling uncancelled but used railway tickets. Three were
convicted of conspiracy, two of misdemeanor, and two were acquitted. It
was ruled that the coxmt was good and was sustainable by a finding that
two or more were concerned in the conspiracy charged.

In E. V. Duguid (a), it was held that D. could lawfully be convicted of
conspiring with the mother of a child under fourteen to take the child
by force from the possession of its lawful guardian, although sect. 56
of the Offences against the Person Act, 1861, under which such abduction
is criminal, contains an express provision excepting from criminal liability
a person who shall have claimed any right to the possession of such
child. The mother was not tried with D. nor amenable to justice. The
Court did not determine whether the mother came within the exception,
but ruled that her immunity if established had no legal bearing on the
question whether a conspiracy by D. with her to commit the statutory
crime was criminal so far as concerned D (aa).

In consequence of the nature of the crime, it has been held where an
indictment for conspiracy was tried in the Court of King's Bench, a new
trial granted as to one of several convicted of conspiracy operated as a
grant of a new trial as to the others convicted, although the grounds
for the grant of the new trial applied only to the one. But where
of those indicted for conspiracy some were convicted and some acquitted,
the grant of a new trial in favour of those convicted did not afiect the
verdict of acquittal (b). A new trial can no longer be granted in England
on conviction of any criminal offence (c) ; but the principles involved in
the above ruUngs may have to be considered in the event of an appeal
by one conspirator where several have been convicted.

Conspiracies to commit Offences Punishable by the Criminal Law. —
Whatever doubt may exist as to other forms of conspiracy, it is
clearly established that every conspiracy to commit an offence punish-
able by law is an indictable offence. Where the conspiracy is executed,
it appears to merge in the completed offence (d). Conspiracies of this
kind are merely auxiliary to the law which creates the principal crime (e).

It is immaterial whether the principal offence is a felony (/) or a misde-
meanor (g), or whether it is an offence at common law or by statute (h),

[a] [1906] 75 L. J. K.B. 470: 70 J. P. (/) Conspiracy to commit treason or

294. Cf. R. V. Whitchurch, 24 Q.B.D. 420. treason felony is an overt act of treason

{aa) In R. v. Grossman, 24 T. L. R. 157, or treason felony. Mulcahy v. R., L. R.

on an application on behalf of the mother 3 H. L. 300. For an indictment for con-

(who was out of the jurisdiction) to compel spiring to take from the United States Consul

the withdrawal of d, warrant against her in Samoa and lynch a man committed for

for taking part in the conspiracy, the Court trial for murder, see Huvit i'. R. [1878],

declined to decide, in the absence of the Fiji Reports (Udal), 29.

mother, whether she was liable for the con- (g) For precedents of conspiracies to

spiracy. commit riots see 2 Chit. Cr. L. 506, note (a).

(6) R. D. Gompertz, 9 Q.B. 824. Cf. R. R.t'. Vincent,9C.&P.91. In R. u. PoUman,

V. Quinn, 19 Cox, 78 (Ir.). As to the rule 2 Camp. 229, it seems to have been held

where one is convicted and the rest ac- that to purchase an office under the Customs

quitted, see R. v. Plummer, ante, p. 47. was a misdemeanor at common law (see

(c) 7 Edw. VII. 0. 23, s. 20, post, Bk. xii. R. v. Vaughan, 4 Burr. 2494), and it was
0. iv. For former practice see Archbold, held that conspiring to obtain money by
Cr. PI. (23rd ed.), 291 : Crown Office Rules, procuring an appointment to such office
1906, rr. 156 et seq. : and Short & Mellor, was indictable. See 49 Geo. III. c. 126,
Crown Practice (1st ed.), 253. post, p. 621.

(d) See Ld. Raym. 711. (h) See R. v. Best, [1705], 2 Ld. Raym.

(e) Wright on Conspiracy, 80. 1167.

CHAP. VI.] Inciting and Inducing to Commit Crimes. 151

and whether punishable on indictment or on summary conviction {%), or
hrevi manu, as in the case of contempt of court. And this form of con-
spiracy includes combination to violate the provisions of a statute (/),
or of a by-law made, or a proclamation issued, under statutory authority,
if the violation of the statute, by-law, &c., is a misdemeanor at common
law, or visited by a specific criminal penalty (k) ; and also extends to
include combination to commit a "breach of the peace (I). The fact
that conspiracy to commit felony is indictable, was recognised by the
provision for payment out of public funds of the costs of prosecuting such
an offence (14 & 15 Vict. c. 55, s. 2). A person may be convicted of con-
spiracy to commit a crime of which he could not, if he stood alone, be
convicted. Thus, a woman has been held to have been properly con-
victed of conspiring with others to administer drugs to herself, or use
instruments to herself, with intent to procure abortion (m), when it was
proved that she believed erroneously that she was with child (n).

Convictions have been had for conspiracies to poison human beings (o)
or horses (p), to commit forgery (q), larceny (r), marine barratry with
intent to defraud underwriters (s), and prison breach (t), and to form an
unlawful assembly (u). Conspiracy to murder is a statutory felony (v),
as are certain combinations or agreements for the purpose of treason,
felony, or sedition (post, p. 327).

In E. V. Brailsford (w), it was held to be criminal for two to conspire
to obtain a passport from the Foreign Ofiice in the n-ame of one of them
by falsely pretending that he desired to travel in Russia, and with intent
that the passport should be used by another person. The passport was
obtained and sent to the other person and used in Russia by a revolu-
tionist. The conspiracy was laid as being in fraud of the Foreign Office
to the injury, prejudice, and disturbance of the lawful free and customary
intercourse between the King's subjects and those of the Czar, and to
the public mischief of the King's subjects, and to the endangerment of
peaceful relations between the King and Czar, and between their respective
subjects. It was argued for the Crown that the offence was indictable
at common law independently of conspiracy (x). This contention the
Court considered well founded as to frauds and cheats, and apparently
as to any other acts tending to produce a public mischief («/), and held
that obtaining a passport by a false pretence, i.e., cheating and deceiving

(i) K. V. Bunn, 12 Cox, 316, Brett, J. (p) R. t.. King [1820], 2 Chit. (K.B.), 217.

On the objections to this extension, see {q) R. v. Brittain [1848], 3 Cox, 76.

Wright on Conspii-acy, 83. (r) R. v. Taylor, 21 L. T. (N. S.) 75.

(?) R. V. Thompson, 16 Q.B. 832, ante, {s) R. v. Kohn [1864], 4 F. & F. 68, post,

p. 148. In that ease it was said that as p. 178.

conspiracy is an offence at common law, if {t) R. v. Desmond [1868], 11 Cox, 146.

parties conspire to commit an offence (m) R. v. Hunt [1820], 3 B. & Aid. 566 ;

created by statute, they may be indicted 1 St. Tr. N. S. 171.

for such conspiracy, although the statute (u) 24 & 25 Vict. c. 100, s. 4, post, p. 835.

be repealed before the indictment is pre- {w) [1905] 2 K.B. 730.

ferred. {x) They cited : R. v. Higgins, 2 East, 5,

(k) See Wright on Conspiracy, 83. 21, Lawrence, J. R. v. Wheatly, 2 Burr.

{I) 4 St. Tr. (N. S.) 1347. 1125, 1127 ; 1 W. Bl. 273, Lord Mansfield.

(to) a felony within 24 & 25 Vict. v;. 100, Young v. R., 3 T. R. 98, 104, cit. Buller, J.

s. 58, post, p. 829. R. V. Vaughan, 4 Burr. 2494.

(») R. V. Whitchurch, 24 Q.B.D. 420. {y) They relied on R. u. de Berenger,

Of. R. V. Duguid, 70 J. P. 294, ante, p. 150. 3 M. & S. 67, and R. v. Dixon, 3 M. & S. 11.

(o) R. V. Maudsley [1820], 1 Lew. 51.

152 Of Criminal Conspiracy. [book i.

the Foreign Office, was an act which would render a conspiracy to carry
it into effect criminal, and that the particular conspiracy was clearly
calculated and intended to produce a grave public mischief, because it
sought to obtain by false representations and improper purpose the issue
of a public document by a public department of state.

Conspiracy for seditious purposes is indictable, sedition itself being
a criminal offence (z). In E. t;. Vincent (a), some of the counts of an
indictment charged the defendant with conspiring to cause a great
number of persons to meet together for the purpose of exciting discontent
and disaffection in the minds of the subjects of the Queen, and for the
purpose of exciting the said subjects to hatred and contempt of the
government and constitution, and it appeared that a large number of
persons had assembled at meetings, at which violent speeches had been
made respecting the government and constitution and the people's
charter. Alderson, B., told the jury, ' The purpose which the defendants
had in view, as stated by the prosecutors, was to excite disaffection and
discontent, but the defendants say that their purpose was by reasonable
argument and proper petitions to obtain the five points mentioned by
their learned counsel. If that were so, I think it is by no means illegal
to petition on those points. The duration of Parliaments and the extent
of the elective franchise have undergone more than one change by the
authority of Parliament itself ; and with respect to the voting by ballot,
persons whose opinions are entitled to the highest respect are found
to differ (b). There can also be no illegality in petitioning that members
of Parliament should be paid for their services by their constituents ;
indeed, they were so paid in ancient times, and they were not required
to have a property qualification till the reign of Queen Anne (c), and are
now not required to have it in order to represent any part of Scotland
or the English Universities.' And he directed the jury to say whether
they were satisfied that the defendants conspired to excite disaffection,
and if they were to find them guilty of conspiracy.

The first count in an indictment against Daniel O'Connell (d) and others
alleged that the defendants, intending to create discontent and disaffec-
tion amongst the subjects of the Queen, and to excite the said subjects
to hatred of the government and constitution, &c., unlawfully and
seditiously did conspire, &c., to create discontent and disaffection amongst
the subjects of the Queen, and to excite such subjects to hatred and
contempt of the government and constitution and to unlawful and seditious
opposition to the government and constitution, and to stir up jealousies and
ill-will between different classes of Her Majesty's subjects, and especially
to promote among Her Majesty's subjects in Ireland feelings of ill-will

(2) R. V. Kedhead Yorke, 25 St. Tr. 1003. made inciting to violence. R. v. Burns,

R. V. Hunt, 1 St. Tr. (N. S.) 171 ; 3 B. & Aid. 16 Cox, 355, where the earlier authorities

566. 0'ConneUj).R.,llCl.&F.155;5St.Tr. are discussed.

(N. S.) 51. R. V. McHugh [1901], 2 Ir. Rep. (a) 9 C. & P. 91. Cf. R. ... Shellard, 9

569. Seeposi, p. 327 cJse?.,' Sedition.' It 0. & P. 277.

is not seditious candidly, fully and freely to (6) See the Ballot Act, 1872 (35 & 36

discuss public matters or criticise the Gov- Vict. c. 33, temp.).

emment, unless the discussion or criticism (c) Nor since 1858, when it was abolished

is under circumstances calculated or in- by 21 & 22 Vict. 0. 26.

tended io create tumult, or statements are (d) 11 CI. & F. 155 : 5 St. Tr. (N. S.) 1,

CHAP. VI.] Seditious Combinations. 153

and hostility towards and against Her Majesty's subjects in the other
parts of the United Kingdom, and especially in that part called England
and further, to excite discontent and disaffection amongst divers of Her
Majesty's subjects serving in the army ; and further, to cause and procure,
&c., divers subjects unlawfully and seditiously to meet and assemble
together in large numbers, at different places in Ireland, for the unlawful
and seditious purpose of obtaining, by means of the intimidation to be
thereby caused, and by means of the exhibition of great physical force
at such assemblies and meetings, changes and alterations in the govern-
ment, laws, and constitution ; and further, to bring into hatred and
disrepute the courts by law established in Ireland for the administra-
tion of justice, and to diminish the confidence of the said subjects in
Ireland in the administration of the law therein, with the intent to induce
the subjects to withdraw the adjudication of their differences from the
cognizance of the said courts, and to submit the same to the determina-
tion of other tribunals to be constituted for that purpose. The count
then alleged various overt acts done in order to excite discontent with,
hatred of, and disaffection to the government, laws, and constitution.
The second count was exactly like the first, but omitted the overt acts.
The third count alleged that the defendants, intending to create discon-
tent and disaffection amongst the subjects of the Queen, and to excite
the said subjects to hatred and contempt of the government and constitu-
tion. &c., unlawfully and seditiously did conspire, &c., to raise and create
discontent and disaffection amongst the subjects of the Queen, and to
excite such subjects to hatred and contempt of the government and
constitution, and to unlawful and seditious opposition to the said
government and constitution, and to stir up hatred, jealousies, and ill-will
between different classes of the said subjects, and especially to promote
amongst the said subjects in Ireland feelings of ill-will and hostility
against the said subjects in other parts of the United Kingdom, and
especially in that part called England ; and further, to excite discontent
and disaffection amongst divers subjects serving in Her Majesty's army;
and further, to caixse and procure, &c., divers subjects to meet and
assemble together in large numbers at different places in Ireland, for the
unlawful and seditious purpose of obtaining, by means of the intimida-
tion to be thereby caused, and by means of the exhibition of great physical
force at such assemblies and meetings, changes in the government, laws,
and constitution ; and further, to bring into hatred and disrepute the
courts in Ireland for the administration of justice, &c. The fourth count
was the same as the third, omitting the charges as to creating discontent
in the army, and the diminishing the confidence in the courts of law.
The fifth count alleged that the defendants, intending to cause and create
discontent and disaffection amongst the Hege subjects of the Queen,
and to excite the said subjects to hatred and contempt of the govern-
ment and constitution, &c., unlawfully and seditiously did conspire, &c.,
to raise and create discontent and disaffection amongst the liege subjects
of the Queen, and to excite the said subjects to hatred and contempt
of the government and constitution, and to unlawful and seditious opposi-
tion to the government and constitution, and also to stir up jealousies,
haj;redj and ill-will between different classes of the said subjects, apd

154 Of Criminal Conspiracy. [book i.

especially to promote amongst the said subjects in Ireland feelings of
ill-will and hostility against the subjects in the other parts of the United
Kingdom, and especially in England. Tindal, C.J., in expressing to
the House of Lords the opinion of the consulted judges, said : ' There
can be no question but that the charges contained in the first five counts
do amount, in each, to the legal offence of conspiracy, and are sufficiently
described therein. There can be no doubt but that the agreeing of
divers persons together to raise discontent and disaffection amongst the
liege subjects of the Queen, to stir up jealousies, hatred, and ill-will
between different classes of Her Majesty's subjects, and especially to
promote amongst Her Majesty's subjects in Ireland feelings of ill-will
and hostility towards Her Majesty's subjects in other parts of the United
Kingdom, and especially in England — which charges are found in each
of the first five counts — do form a distinct and definite charge in each,
against the several defendants, of an agreement between them to do
an illegal act (e) ; and it therefore becomes unnecessary to consider the
other additional objects and purposes alleged in some of these counts to
have been comprised within the scope of the agreement of the several
defendants.

The eighth count in the indictment charged a conspiracy to bring
the tribunals of justice into contempt, and to cause the subjects to with-
draw their differences from the said tribunals, and to submit the same
to other tribunals. The ninth was similar to the eighth, but substituted
for withdrawing their differences, &c., ' to assume and usurp the preroga-
tive of the Crown in the establishment of courts for the administration
of the law.' The tenth count charged a conspiracy to bring into disrepute
the tribunals for the administration of justice. And the eleventh count
alleged that the defendants, intending by means of intimidation and
demonstration of physical force, &c., by causing large numbers of persons
to meet and assemble in Ireland, and by means of seditious and inflamma-
tory speeches to be delivered to the said persons, and by means of publish-
ing divers unlawful and seditious writings, to intimidate the Lords
Spiritual and Temporal and Commons of the Parliament of the United
Kingdom, and thereby to effect changes in the laws and constitution,
unlawfully and seditiously did conspire, &c., to cause large numbers of
persons to meet together in divers places and at divers times in Ireland,
and by means of seditious speeches to be made at the said places and
times, and by means of publishing to the subjects of the Queen unlawful
and seditious writings, &c., to intimidate the Lords Spiritual and Temporal
and the Commons of the Parliament of the United Kingdom, and thereby
to effect and bring about changes and alterations in the laws and constitu-
tion. Tindal, C.J., in giving to the House of Lords the opinion of the
consulted judges, said (/) : ' We all concur in opinion that the object and
purpose of the agreement entered into by the defendants, as disclosed upon
these counts, is an agreement for the performance of an act, and the
attainment of an object, which is a violation of the laws of the land.
We think it unnecessary to state reasons in support of the opinion that

CHAP, VI.] Combinations to Cause Nuisance. 155

an agreement between the defendants to diminish the confidence of Her
Majesty's subjects in Ireland in the general administration of the law
therein, or an agreement to bring into hatred and disrepute the
tribunals by law established in Ireland for the administration of justice,
are each and every of them agreements to effect purposes in manifest
violation of the law. Upon the sufficiency of the eleventh count, no
doubt whatever has been raised.'

Conspiracy to obtain money by getting from the lords of the treasury
the appointment of a person to an office in the customs has been
held a misdemeanor at common law. Counsel for the defendant
proposed to argue that the indictment was bad on the face of it,
as it was not a misdemeanor at common law to sell or to purchase
an office like that of a coast waiter, and that, however reprehensible
such a practice might be, it could only be made an indictable offence
by Act of Parliament. But EUenborough, C.J., said : ' If that be a
question it must be debated on a motion in arrest of judgment, or on a
writ of error. But after reading the case of E. v. Vaughan {g), it will be
very difficult to argue that the offence charged in the indictment is not
a misdemeanor.' And Grose, J., in passing sentence, likewise observed
that there could be no doubt that the indictment was sufficient, and that
the offence charged was clearly a misdemeanor at common law Qi).

Nuisance. — It is said to be criminal to conspire to injure the public
health as by selling unwholesome food. Many acts tending to the injury
of the public health are nuisances at common law, or punishable sum-
marily, or on indictment, and conspiracies to commit such offences would
be criminal under the rule stated, ante, p. 150. The selling unwholesome
provisions may be in some cases treated as a cheat or fraud at common
law (i). In R. v. Mackarty {j), the indictment charged that the defendants,
F. and M., falsely and deceitfully intending to defraud T. C, &c.,
together deceitfully bargained with him to barter, sell, and exchange a
certain quantity of pretended wine, as good and true new Portugal wine,
of him the said F., for certain goods of C. ; and that, upon such bartering,
&c., the said F. pretended to be a merchant, and to trade as such in
Portugal wines, when, in fact, he was no such merchant, nor traded as
such in wines ; and the said M., on such bartering, &c., pretended to be
a broker, when, in fact, he was not, and that the said C, giving credit to
the said deceits, did barter, sell, and exchange to F., and did deliver to
M., as the broker between the said C. and F., for the use of F., goods, for
the pretended new Portugal wine ; and that M. and F., on such bartering,
&c., affirmed that it was true new wine of Portugal, and was the wine
of F., when, in fact, it was not Portugal wine, nor was it drinkable or
wholesome, nor did it belong to F., to the great deceit and damage of the
said C, and against the peace, &c. It is observed of this indictment,
which was for a cheat at common law, that though it did not charge that
the defendants conspired eo nomine, yet it charged that they together,
&c., did the acts imputed to them, which might be considered to be

(g) i Burr. 2494. xi. o. iii.

(h) R. V. Pollman, 2 Camp. 229. (j) 2Ld. Raym. 1179 ; Sid. 325 ; 6 Mod.

(i) Vide post, Bk. x. p. 1501, et. seq. ; Bk. 301 ; 1 Salk. 286 ; 6 East, 133, 141 cit.

156 Of Criminal Conspiracy. [book t.

tantamount (k). The case was considered as one of doubt and difficulty,
but it seems that judgment was ultimately given for the Crown (I). In
Treeve's case (m) it was ruled that an indictment lay for wilfully,
maliciously, and deceitfully supplying to prisoners of war food unfit for
human food. According to the statement of Alverstone, C.J., in E. v.
Brailsford [1905], 1 K.B. 730-745, the ratio decidendi was not that stated
in 1 East, P.O. 822, that to do as alleged lucri causa was indictable,
but that the acts tended to produce a public mischief.

Conspiracies as to Paupers. — By the Poor Law Act, 1844 (7 & 8 Vict,
c. 101), s. 8, it is a misdemeanor for any officer of any union, parish, or
place to induce any person to contract a marriage by any threat or
promise respecting any application to be made or order to be enforced
with respect to the maintenance of a bastard child.

Conspiring and contriving, by sinister means, to marry a pauper of
one parish to a settled inhabitant of another, in order to bring a charge
upon it, has been held indictable (w). It is observed respecting a con-
spiracy of this kind, that, considering the offence is a prostitution of the
sacred rites of marriage, for corrupt and mercenary purposes, and that,
by artful and sinister means, persons are seduced into a connection for
life without any inclination of their own, and contrary to that freedom
of choice which is peculiarly required in forming so close an union, and
on which the happiness of them both so entirely depends ; and this for
the sake of some gain or saving to others who bring about such marriage ;
in this light it seems a fit ground for criminal cognisance, not only as being
a great oppression upon the parties themselves more immediately inter-
ested, but as an offence against society in general, being an abuse of that
institution by which society is best continued and legal descents preserved,
and a perversion of the purposes for which it was ordained (o). Upon an
indictment against parish ofiicers for a conspiracy of this kind, it appeared
that a man of one parish having gotten with child a woman belonging to
another parish, the defendants had agreed with the man (who was of the
age of twenty-nine), with the approbation of his father, to give him two
guineas if he would marry the woman, and that he afterwards married
her on such condition, and received the money from the defendants
immediately after the marriage ; and it was also sworn, both by the man
and the woman, that they were willing to marry at the time. BuUer, J.,
directed an acquittal, notwithstanding the proof of the money having
been given to procure such consent; and this after the putative father
had been arrested under a justice's warrant, and was in custody of the
overseers. He ruled that it was necessary, in support of such an indict-
ment, to shew that the defendants had made use of some violence, threat,
or contrivance, or used some sinister means to procure the marriage with-
out the voluntary consent or inclination of the parties themselves ; and

[k) The indictment was for bartering said that R. v. Mackarty was a case of

pretended port wine alleged to be unwhole- conspiracy as well as of false tokens,

some. In R. v. Southerton, 6 East, 133, {I) 2 East, P.O. c. 18, s. 5.

Ellenborough, C.J., said that the vending (m) [1796] 2 East, P.C. 821.

of such an article was clearly indictable, a (») R. v. Tarrant, 4 Burr. 2106. R. v.

deceit or public cheat, but the indictment Herbert, 1 East, P.C. 461. R. v. Compton,

was not framed for conspiracy. In R. v. Cald. 246. See R. v. Edwards, 8 Mod. 320.

Wheatljr, 2 Burr. 1127, 1129, Denison, J., (o) 1 East, P.C. 461.

CHAP. Vt] Combinations Contra Bonos Mores. 157

that the act of marriage, being in itself lawful, a conspiracy to procure
it could only amount to a crime by the practice of some undue
means (p).

Where the indictment stated the marriage to have been procured by
threats and menaces against the peace, &c., it was held sufficient, without
averring in terms that the marriage was against the will or consent of
the parties, though that must be proved (q).

And an indictment does not lie for conspiracy merely to exonerate
one parish from the charge of a pauper and to throw it on another, nor
for conspiring to cause a male pauper to marry a female pauper for that
purpose, it not being stated that the conspiracy was to efiect such
marriage by force, threats, or fraud, or that it was so efiected in pursuance
of the conspiracy (r). An allegation in such an indictment that a poor
unmarried woman in a parish was with child is not equivalent to an
allegation that she was chargeable to such parish (s). And it has been
doubted whether an allegation that the defendants conspired together
for the purpose of exonerating, is equivalent to allegation that they
conspired to exonerate (t).

Upon an indictment for conspiring to give and giving a man money
to marry a poor helpless woman, who was an inhabitant of B., in order to
settle her in the parish of A., where the husband was settled, judgment
was arrested, because it was not averred that she was last legally settled
in B. (u). But it seems perfectly immaterial where the woman's settle-
ment was, if it were not in A., provided that fact distinctly appeared (v).
It was, however, usual to aver the settlements of the parties in their
respective parishes, and also that the woman was chargeable to her own
parish at the time, though this latter has never been adjudged to be
necessary, nor seems to be required according to the general rules which
govern the offence of conspiracy (w) : for in such cases both the purpose
and the means used are clearly unlawful.

Conspiring to let a pauper land to the intent that he may gain a
settlement is illegal (x).

Acts Contra Bonos Mores. — Conspiracy to do acts regarded as contra
honos mores, is punishable by ecclesiastical law, but not criminal or
tortious by common law or statute. In the seventeenth century the
Court of King's Bench assumed jurisdiction to superintend offences
contra honos mores («/).

Conspiring to charge a man with being the father of a bastard child
is indictable, whether the intent be to extort money or not. Where the
object is stated to be to extort money, it is immaterial whether the woman

(p) R. V. Fowler, 1 Bast, P.O. 461. And (t) Per WiUiams, J., ibid., citing R. v.

the learned judge said that this point had Nield, 6 East, 417. ■ But in R. v. Ridgway,

been so ruled several times by several 5 B. & Aid. 527, R. v. Nield was doubted by

judges. Tenterden, C.J.

(q) R. V. Parkhouse, 1 East, P.C. 462, (u) R. v. Edwards, 8 Mod. 320.

BuUer, J. (v) 1 East, P.C. 462.

(r) R. V. Seward, 1 A. & E. 706. Cf. a (w) Id. ibid,

precedent in 4 Wentworth, 129, to bring (x) R. v. Edwards, 8 Mod. 320.

a pregnant pauper to settle in a parish. (y) R. v. Delaval [1763], 3 Burr. 1434,

(s) Per Denman, C. J., and Taunton, J., 1438, per Lord Mansfield,
ibid.

158 Of Criminal Conspiracy. [BOOK 1.

is or is not pregnant (z), or whether the charge is or is not false (a), or
that the child was Likely to be chargeable (a). In a case where no intent
to extort was alleged, the Court doubted upon the objection that the
charge was not stated to be false, but ultimately held the indictment to
be sufficient, as the defendants were at least charged with conspiring to
accuse the prosecutor of fornication, and although that was a spiritual
offence, conspiring to accuse of it was a temporal offence (a).

The same rule seems to have been applicable to conspiracies to charge
with heresy, or any other spiritual defamation (a) or to charge another
with slanderous matter (c). Combinations to subvert religion are said to
be criminal (d).

It has been held criminal to conspire to prevent the burial of a corpse,
or take up dead bodies for dissection (e). Digging up dead bodies with-
out lawful authority is indictable at common law (/), and it is also
contrary to ecclesiastical law and modern statutes (g).

In the follovnng cases it has been held criminal at common law to
conspire to debauch females under twenty-one. Lord Grey and others
were charged, by an information at common law, with conspiring and
intending the ruin of the Lady Henrietta Berkeley, then a virgin unmarried,
within the age of eighteen years, one of the daughters of the Earl of
Berkeley (she being under the custody, &c., of her father), and soliciting
her to desert her father, and to commit whoredom and adultery with
Lord Grey, who was the husband of another daughter of the Earl of
Berkeley, sister of the Lady Henrietta, and to live and cohabit with him ;
and, further, the defendants were charged, that in prosecution of such
conspiracy, they took away the Lady Henrietta at night from her father's
house and custody, and against his will, and caused her to live and
cohabit in divers secret places with Lord Grey, to the ruin of the lady
and to the evil example, &c. The defendants were found guilty, though
there was no proof of any force, but, on the contrary, it appeared that
the lady, who was herself examined as a witness, was desirous of leaving
her father's house, and concurred in all the measures taken for her
departure and subsequent concealment. It was not shewn that any
artifice was used to prevail on her to leave her father's house ; but the
case was put upon the ground that there was a solicitation and enticement
of her to unlawful lust by Lord Grey, who was the principal person
concerned, the others being his servants, or persons acting by his
command, and under his control (h).

A count charged that the prisoners did between themselves conspire,

(2) R. V. Armstrong, 1 Ventr. 304 ; 1 Chit. Cr. L. 36.

Lev. 62. R. v. Timberley, 1 Sid. 68. See (/ ) R. v. Lynn, 2 T. R. 733.

Wright on Conspiracy, 2L (g) See post, Bk. xi. o. v.

(o) R. V. Best, 2 Ld. Raym. 1167. Vide (h) R. v. Lord Grey, 9 St. Tr. 127 ; 1 East,

1 Hawk. c. 72, s. 8. R, v. Hollingberry, R.C. 460. In Wright on Conspiracy, 26,

4 B. & C. 329. R. V. Jacobs, 1 Cox, 173. 106, it is suggested that the offence charged

The truth or falsity of the charge may be was not conspiracy but abduction from her

material on the question of intent. father's house and procurement of a girl of

(c) See R. v. Armstrong, supra. R. v. seventeen, and that this ofJence was punish-
Best, 1 Salk. 174. R. v. Kinnersley, 1 Str. able at common law. The word conspir-
193. antes is regarded by Mr. Wright as meaning

id) Fitzgibbon, 66. Vide post, p. 393. ' contriving.'

CHAP. VI.] Oomhinations Contra Bonos Mores. 159

combine, confederate, and agree together knowingly and designedly to
procure, by false representations, false pretences, and other fraudulent
means, J. C, a poor child, under the age of twenty-one years, to wit, of
the age of fifteen years, to have illicit carnal connection with a man whose
name was to the jurors unknown, and, upon a case reserved, the judges
were unanimously of opinion that this count charged an indictable offence
at common law {i).

A count alleged that the prisoners unlawfully conspired, &c., to solicit,
persuade, and procure, and in pursuance of the said conspiracy did
unlawfully solicit, incite, and endeavour to procure L. M., an unmarried
girl, within the age of eighteen years, to become and be a common prosti-
tute, and to commit whoredom and fornication for lucre and gain with
men ; and it was urged, in arrest of judgment, that the count was bad,
as it did not aver that the girl was chaste ; the fact of a loose woman
committing fornication was not punishable by law ; but it was held that
the count was good, as it charged a conspiracy to bring about an illegal
condition of things (/).

In R. V. Delaval {k), leave was given to exhibit a criminal information
against a master, an attorney, and a gentleman to assign over a female
apprentice by her own consent for purposes of prostitution.

In R. V. Robinson and Taylor (?), a woman was indicted for con-
spiring with a man that he should personate her master, and in that
character should solemnise a marriage with her, for the purpose of after-
wards raising a specious title to the property of the master, in pursuance
of which conspiracy the parties intermarried. It was held that it was the
province of the jury to collect, from all the circumstances of the case,
whether there was not an intention to do a future injury to the person
whose name was assumed, and that it was not necessary to prove any
direct or immediate injury {I). Marriage under a false name is now a
criminal offence (m).

In R. V. Serjeant (w) the defendant was held to have been properly
convicted on an indictment, which charged that M. A. W. was a person
of ill-fame and bad character, and a common prostitute, and that W. B. S.
was an infant within the age of twenty-one years, and that M. A. W. and
P. D. and S. J., intending to defraud the said W. B. S. of his property,

(i) R. V. Mears, 2 Den. 79 ; 20 L. J. M. 0. Wright on Conspiracy, 106. By s. 1 of the

59. See Wright on Conspiracy, p. 33. The Criminal Law Amendment Act, 1885, it is

indictment also contained two counts criminal to procure or attempt to procure

framed to charge an attempt to commit an any woman or girl to become either within

offence under 12 & 13 Vict. c. 76 (rep. 1891, or without the King's dominions a common

S. L. R.), but no opinion was expressed as to prostitute.

these counts. By ss. 4 & 5 (1) of the Criminal (k) [1763] 3 Burr. 1434 : 1 W. Bl. 410.

Law Amendment Act, 1885 (48 & 49 Vict. It is suggested in Wright on Conspiracy, p.

c. 69), having or attempting carnal know- 32, that it is an offence at common law

ledge of a girl under sixteen is criminal, for a master to induce his apprentice to

and by s. 3 (2) it is criminal by false pre- practise prostitution for his profit,

tences or false representation to procure any (I) 1 Leach, 37 ; 2 East, P. C. 1010. In

woman or girl not being a common prosti- Wade v. Broughton, 3 V. & B. 172, it was

tute or of known immoral character to have said that persons conspiring to procure the

any unlawful carnal connection. marriage of a female for the sake of her

(?) R. V. Howell, 4 F. & F. 160, Bram- fortune may be indicted for a conspiracy,

well, B., and Russell Gurney, Recorder. (m) Vide post, p. 1013.

The dicta of Bram well, B., go too far. See (n) Ry. & M. 352.

160 Of Criminal Conspiracy. [book I.

conspired for the purpose aforesaid to procure a marriage to be solem-
nised between the said W. B. S. and the said M. A. W., by means of
a false oath to be taken by the said M. A. W., and by divers false
pretences, and without the consent of the mother of the said W. B. 8.,
his father being dead, and that the said M. A. W. and P. D. and S. J., in
pursuance of the said conspiracy, did prevail on the said W. B. S. to con-
sent to marry the said M. A. W., and by means of such persuasion, and
by means of "a false oath taken by the said M. A. W., in order to obtain a
licence for the solemnisation of marriage between the said W. B. S. and
the said M. A. W., did cause the said W. B. S. to marry the said M. A. W.,
and a marriage by such licence was accordingly solemnised between them,
without the leave of the mother of the said W. B. S., who then was such
infant as aforesaid.

In Gibbon Wakefield's case (o), an indictment was held to he for
conspiring to carry away a woman under twenty-one from the custody
of her parents and instructors, and afterwards to marry her to one of
the offenders, contrary to the provisions of 4 & 5 Ph. & M. c. 8, ss. 3 &4 (rep.),
and also for conspiring to commit the capital felony (under 3 Hen. VII.
c. 2, s. 1 (rep.)) of taking away an heiress against her will, and afterwards
marrying her to one of the defendants. The young lady, who was the
heiress of a gentleman of large fortune, and was only fifteen years of age,
was induced to leave the house where she had been placed, by means of
a fictitious letter, fabricated by the defendants, who conveyed her to
Gretna Green, where she was induced by means of false representations
to go through the ceremony of a Scotch marriage, and to consent to
become the wife of one of the defendants : and the defendants were
convicted.

Public Justice. — All combinations to subvert pubHc justice are now
regarded as indictable. They fall into three classes : —

1. Conspiracies to make false accusations of crime or unfounded civil

claims.

2. Conspiracies to threaten to make false accusations or claims.

3. Conspiracies to interfere with the fair trial of pending proceedings.
Conspiracies to make False Charges. — According to Sir E. S. Wright,

conspiracy is a crime of statutory origin (p), and historically the oldest
form of criminal conspiracy is that defined by the old statutes and
ordinances, 28 Edw. I. c. 10 (q), and 33 Edw. I. But in O'Connell v. E. (r),
Tindal, C.J., after saying that ' The crime of conspiracy is complete
if two, or more than two, should agree to do an illegal thing ; that is,
to effect something in itself unlawful, or to effect, by unlawful means,

(o) B. V. Wakefield, 2 Lew. 1. The that a conspiracy to prefer one subjected
marriage being in Scotland, an indictment the offenders to the villainous judgment,
for felony under 3 Hen. VII. c. 2, s. 1, could 1 Edw. III. st. 2, o. 11 ; 2 Co. Inst. 384. This
not have been supported, and there was no judgment does not seem to have been pro-
evidence to support an indictment under nounced since the time of Edw. III. B. v.
4 & 5 Ph. & M. c. 8, s. 4. An indictment Spragg, 2 Burr. 996, 997.
was preferred upon 4 & 5 Ph. & M. c. 8, a. 3, (q) This statute seems to give only civil
but no judgment given upon it. See remedies.
Murray's report of the case. (r) 13 CI. & F. 155, citing E. v. Best, 2

(p) It is said tha,t a false indictment is no Ld. Raym. 167, and R. v. Edwards, 8 Mod.

crime as referred to the individual, but 320.

CHAP. VI.] Combinations to Accuse Falsely. 161

something which in itself may be indifferent, or even lawful,' adds ' that
it was an offence known to the common law, and not first created by the
33 Edw. I. Stat. 2 (s), is manifest. That statute speaks of conspiracy
as a term at that time well known to the law, and professes only to be
" a definition of conspirators." It has accordingly always been held to
be the law, that the gist of the of ence of conspiracy is the bare engage-
ment and association to break the law, whether any act be done in
pursuance thereof by the conspirators or not.'

The description of conspirators in the ordinacio de conspiraioribus
(33 Edw. I.) (<), is that ' conspirators be they that do confeder or bind
themselves by oath, covenant, or other alliance, that every of them shall
aid and bear the other falsely and maliciously to indict, or cause to indict,
or falsely to move and maintain pleas ; and also such as cause children
within age to appeal men of felony, whereby they are imprisoned and
sore grieved (s) : and such as retain men in the country with liveries or
fees for to maintain their malicious enterprises, and to drown the truth ;
and this extendeth as well to the takers, as to the givers ; and stewards
and bailiffs of great lords, who by their seigniory, of&ce, or power,
undertake to bear or maintain quarrels, pleas, or debates, that con-
cern other parties than such as touch the estate of their lords or
themselves' (u). The ordinance is repealed as to combinations with
respect to wages {v), and the definition contained in it is, of course,
not exhaustive of the varieties of conspiracy (w).

One of the oldest definitions of conspiracy is ' a consultation and agree-
ment between two or more to appeal, or indict an innocent person falsely
and maliciously of felony, whom accordingly they cause to be indicted
or appealed ; and afterwards the party is lawfully acquitted by the verdict
of twelve men' (x).

From the statutory definition it seems clearly to follow that not only
those who actually cause an innocent man to be indicted, and also to
be tried upon the indictment, whereupon he is lawfully acquitted, are
properly conspirators, but that those also are guilty of this offence,
who barely conspire to indict a man falsely and maliciously, whether
they do any act in prosecution of such conspiracy or not ; for the
words of the statute seem expressly to include all such confederacies
under the notion of conspiracy, whether there be any prosecution or
not (y).

It appears not only from the words of the statute but also from the
plain reason of the thing, that no confederacy whatsoever to maintain a

(«) Appeals of felony were abolished in {y) 1 Hawk. c. 72, s. 2. In R. v. Spragg

1819. (59 Geo. 3 0. 46, rep.) 2 Burr. 99.3, 998, Serjeant Davy said:

(t) Sometimes cited as 21 Edw. I. ' There is a distinction between a writ of

(w) The latter part of the ordinance deals conspiracy and an indictment for oonspi-

with maintenance {q. v. post, p. 587). In racy. In an action the damage is the gist

some old books confederacy is applied to of the action ; and therefore the writ and

agreements to maintain, and conspiracy to declaration must charge " that he was in-

agreements to indict. See Wright on Con- dieted and sustained damage " ; but that

spiracy, 18. is not necessary in an indictment, which is

(v) By 6 Geo. IV. c. 129, s. 2. As to for an offence against the public. And

combinations affecting trade, see post, p. 176. this distinction explains Lord Coke's mean-

(w) R. V. Tibbits [1902], 1 K.B. 77, 89. ing in 3 Inst. 143.'

(x) 3 Co. Inst. 143. 4 Bl. Com. 136.

VOL. I. M

162 Of Criminal Conspiracy. [book i.

suit can come witMn the words of the 33 Edw. I. stat. 2, unless it is both
false and malicious (^).

By the conjoint efiect of the ordinance and the common law (a),
it is criminal unlawfully to agree to injure any person by a false charge,
whether the offence charged is a temporal or an ecclesiastical offence (6),
and whether it is treason felony or misdemeanor, or merely a charge
affecting his credit or reputation.

This form of conspiracy is not criminal if the charge was to be pre-
ferred honestly and with reasonable belief in its truth (c). Several
persons may lawfully meet together and consult to prosecute a guilty
person, or one against whom there is probable cause of suspicion ; but not
to prosecute one who is innocent, right or wrong (d). And associations
to prosecute felons, and even to put the laws in force against political
offenders, are lawful (e).

It seems not to be any justification of a conspiracy to carry on a
false and malicious prosecution, that the indictment which was preferred,
or intended to be preferred in pursuance of it, was insufficient, or that
the Court wherein the prosecution was carried on or designed to be
carried on had no jurisdiction of the cause, or that the matter of the
indictment did import no manner of scandal, so that the party grieved
was, in truth, in no danger of losing either his life, liberty, or reputation.
For notwithstanding the injury intended to the party against whom
such a conspiracy is formed may perhaps be inconsiderable, yet the
association to pervert the law, in order to procure it, is criminal (/).
On an indictment for wickedly and unlawfully conspiring to accuse
another of taking hair out of a bag, without alleging it to be an unlawful
and felonious taking, it was said by Lord Mansfield that the gist of the
offence was the unlawful conspiracy to do an injury to another by a
false charge, and that whether the conspiracy were to charge a man
with criminal acts or such only as may affect his reputation, it was
sufficient (g).

It is immaterial whether the conspirators proceed to indict the
object of the conspiracy or whether they stop short at the formation of
the conspiracy or at any point short of the actual indictment and
trial. Where the indictment has been preferred and tried it is not
essential to prove acquittal (h) to found an indictment for conspiracy to
prefer the charge.

In K. V. M'Daniel, the defendants were charged with a con-
spiracy, in causing a man to be executed for a robbery, of which they
knew he was innocent, with intent to get into their possession the

(z) 1 Hawk. 0. 72, s. 7. (e) R. v. Murray [1823], Abbott, O.J.,

(a) In 1 Hawk. c. 72, s. 2, it is said to be 1 Chit. Burn's Just. 817 ; Matth. Dig. 90.

safer and more advisable to indict at com- The law as to maintenance does not apply

mon law because it does not seem to have to the maintenance of criminal proceedings.

been resolved that persons offending by a See post, p. 588.

false and malicious accusation against (/ ) 1 Hawk. c. 72, s. 3.

another are indictable under the statute. (j/) R. v. Rispal, 3 Burr. 1320 • 1 W. Bl.

(6) R. V. Best, 2 Ld. Raym. 1167 ; 1 368. Cf. Pippet v. Hearn, 5 B. & Aid. 634.

Salk. 174. (h) 2 Hawk. o. 72, s. 2. See R. v. Spragg,

(d) R. V. Best, ubi sup. ; and see 1 Hawk. racy was executed bv actual indictment,
c. 72, B. 7.

CHAP. VI.] Combination to Pervert, &c., Justice. 163

reward offered by Act of Parliament {i). And it would have been
equally a conspiracy, though the defendants had failed in their infamous
design, and the man had been acquitted.

2. A conspiracy to indict for the purpose of extorting money is criminal
whether the charge is true or false (/), and so is a conspiracy to
enforce by legal process the payment of money known by the conspirators
not to be due (k). A conspiracy to threaten prosecution or exposure, or
injury, with a view to extort are clearly criminal, because such threats
by an individual are criminal (1), either absolutely or when made without
reasonable and probable cause for the demand made (m).

In the case of a conspiracy to extort, it is immaterial whether the
charge or imputation threatened to be made is true or false (n).

Where the plaintiff had been arrested at the suit of C, and B. had be-
come bail for her, and some proceedings had been taken against him as bail,
and B., C, and others went to the plaintiff's lodgings, andB. said he must
have his money or the plaintiff must go to gaol, and stated that two others
were officers, which was not the fact ; and the plaintiff being frightened,
dehvered to B. a watch and other articles, and two of the others wrote
two papers, which were signed by the plaintiff and B., and which papers
stated that the articles were deposited with B. as a security; Lyndhurst,
C.B., held that, as the defendants all acted in concert, they were guilty of a
conspiracy, for which they might all have been indicted (o).

3. Conspiracies to interfere with the fair trial of proceedings, civil
or criminal, are indictable [p). The interference itself is in many, if
not in all cases summarily punishable as contempt of court {q), if the
proceedings are pending in a superior court of record, and is indictable
in whatever court the proceedings are pending (r).

The following conspiracies have been held criminal : —
To interfere with the course of Justice, or to pervert the minds of
magistrates or jurors, by publishing, pending criminal proceedings, matter
calculated to prejudice a fair trial, e.g., by publishing in newspapers
assertions of the guilt or imputations against the character of a prisoner
awaiting trial (s).

To dissuade or prevent witnesses from giving evidence (i), or to prevent

(i) 19 St. Tr. 745 ; 1 Leach, 45. And (C. C. R.) ; and cf. B. v. Craig [1903], 29

see Fost. 130. It would seem that the only Victoria L. R. 28.

objection to this being treated as a con- (n) E.. v. Hollingberry, uhi sup.

spiracy was that which might arise from its (o) Bloomfield v. Blake, 6 C. & P. 75.

being considered as a crime of the highest (p) This form of conspiracy is described

degree (i.e., murder), in which the misde- in the argument in R. v. Mawbey, 6 T. R.

meaner would be merged. As to the im- 619, as one ' where the subject-matter is

propriety of prosecuting for conspiracy malum prohibitum as referred to the indi-

when the offence contemplated has been vidual, and the criminality in law is thereby

completed, see R. v. Rowlands, 5 Cox, 497 ; aggravated when executed.'

R. V. Boulton, 12 Cox, 87 ; R. v. Good- {q) See post, p. 537.

fellow, 10 Canada Cr. Cas. 424. (r) R. v. Parke [1903], 2 K.B. 432. R.

(?) R. V. Hollingberry, 4 B. & C. 329. v. Davies [1906], 1 K.B. 32.

Cf. R. V. Jacobs, 1 Cox, 173. (s) R. v. Tibbits [1902], 1 K.B. 77,

{k) R. V. Taylor, 15 Cox, 265, 268. where the earlier authorities are collected.

{I) 24 & 25 Vict. c. 96, ss. 44-49 (threats («) R. v. Lawley, 2 Str. 904 ; 1 Hawk,

to accuse of crime, &c.) ; 24 & 25 Viet. c. 21, s. 15. R. v. Steventon, 2 East, 362.

c. 100, s. 16 (threats to murder) ; 24 & 25 In R. v. Gray [1903], 22 N. Z. L. R. 52, an

Vict. 0. 97, s. 56 (threats to bum or destroy); indictment was preferred for dissuading a

6 & 7 Vict. c. 96, s. 3 (threats to publish witness from giving evidence. Cf. R. v.

libel), post. Vol. ii. pp. 1156 et seq. Loughran, 1 Crawf. & Dix. (Ir.), 79.

(m) See R. v. Chalmers, 10 Cox, 450

M 2

164 Of Criminal Conspiracy. [book i.

a witness from attending the trial (u), or to prepare witnesses to
suppress truth (v). To bribe or tamper with jurors (w), or to corrupt
judges (x). Deceit and collusion in Courts of Justice by submitting fabri-
cated evidence or otherwise (y). As to conspiring to indemnify bail,
see E. V. Stockwell, 66 J.P. 376.

Secreting Witness. — A count alleged that S., J., and B. had been
committed for trial for obtaining money by false pretences from H.,
and that H. agreed with W. and P. and the wife of B., intending to defeat
the due course oi law, that H'. should not attend to prosecute or give
evidence, and should receive, in consideration thereof, 400?. from the
said wife of B., and then alleged that H. did receive the 40011. The three
following counts alleged the object to be to defeat and obstruct the due
course of law. The averments were proved. For the defendants it was
alleged that B. had such influence over H. that the latter had made an
affidavit exculpating B. from any participation in the fraud, and that
he was thus placed in the dilemma that, if he did not prosecute, he for-
feited his recognisances, and, if he did prosecute, he might be indicted
for perjury ; and that P., who was his guardian, in order to extricate
his ward from this position, had been a party to the compromise, but
without any intention to do wrong, or to obstruct the course of justice.
But Campbell, C.J., held that, if the necessary effect of the agreement
was to defeat the ends of justice, that must be taken to be the object ;
and the jury were directed to say, on the first and second counts, whether
the defendants did not agree not to prosecute as therein alleged ; and
on the third and fourth counts whether they conspired to obstruct and
defeat the ends of justice. If they did so agree and conspire, whatever'
might be their private reasons, it was the duty of the jury to convict the
defendants (z).

Fabricating Evidence.— In E. v. Mawbey (a), it was held that a
certificate by justices of the peace that an indicted highway is in repair,
is a legal instrument, recognised by the courts of law, and admissible in
evidence after conviction, when the Court is about to impose a fine ;
and that, consequently, it was illegal to conspire to pervert the course
of justice by producing a false certificate in evidence to influence the judg-
ment of the Court. The indictment stated that a highway was indicted
as being out of repair, and a plea of not guilty, but that it was intended
to apply to withdraw the plea and plead guilty ; that two justices of the
county, and two other persons, conspired to pervert the course of justice

(u) B. V. HaU, 2 W. Bl. 1110. In R. v. (ij) R. v. Vreones [1891], 1 Q.B. 360. See

Roderick, at the Glamorgan Summer 3 E. 1 {Stat. West. 1), c. 29 (deceits by

Assizes (Aug. 1906), before Jelf, J., two pleaders or others, not repealed),

persons were convicted of conspiring to (z) R. v. Hamp, 6 Cox, 167. Campbell,

keep away from the assizes a girl who was C. J., held that the facts did not support

prosecutrix in a charge of criminal assault, counts charging a conspiracy to obtain

by sending her to the United States. money from the wife of Broome, with intent

{v) 3 Co. Inst. 106. HoUis's case. Hob. to cheat him of it. The first count had

271 ; see 2 Show. 1. It is incitement, only the word ' agree ' and not conspire,

procurement, or subornation, of perjury. and on its being said that this count did not

(w) Co. Litt. 157. 32 Hen. VIII. c. 9, s. 3. charge a conspiracy. Lord Campbell said,

6 Geo. IV. i;. 50, s. 61. 1 Wms. Saund. 300. 'Nothing turns on that. Conspire is

1 Ld. Raym. 148. 1 Burr. 510. 4 T. R. nothing : agreement is the thing.'

285, vide post, p. 598. (o) 6 T. R. 619.

{x) 3 Edw. I. c. 29. 2 Co. Inst. 212, 217.

CHAP. VI.] Comh'kiations to Defraud. 165

and impose on the Court by producing a false certificate from the two
defendants, who were justices, that the road was in repair, and that they
did so. There was a verdict against the two justices, and a rule was
obtained to arrest the judgment, but after full argument was dis-
charged. Ashhurst, J., said : ' The principal question is whether a
conspiracy to pervert the course of justice by producing in evidence
a false certificate be or be not a crime ? It seems to me a greater
offence can hardly be stated than that of obstructing or perverting
the course of justice, on which the lives and properties of all the subjects
depend.' Grose, J., said: 'It is laid down in some of the cases
that an attempt to persuade another not to give evidence in a Court of
justice is indictable ; then it cannot be doubted but that an attempt
to mislead the Court by misrepresentation is equally criminal. The
course of justice is perverted if the certificate of the justices be false. If
they agree to certify that a road is in repair for the purpose of perverting
the course of justice it is a crime and indictable ; and it is not necessary
that they should know at the time of such agreement that the road
is out of repair ; it is sufficient that they did not know that the fact
which they certified to be true was true.' Lawrence, J., said : ' The
question is, whether a conspiracy to do an act from which the public
may receive any damage be or be not indictable ? At first I thought
this a very doubtful case, because it struck me that this was an act by
which the public would not suffer, as the Court of the Assizes were not
bound to receive the certificate of the defendants, it not being on oath.
But on examination it appears that the practice of receiving the certifi-
cates of magistrates respecting the state of roads, has existed as far as
the memory of living persons extends, and the books carry it still further
back. I have not been able to discover how or when the practice of
receiving these certificates arose ; but a practice that has been adopted
in the Courts at least as long back as the reign of Charles the First, goes
a great way to show what the law is upon the subject. And this is not
the only instance of receiving certificates in evidence ; certificates of
bishops with respect to marriages are received ; the customs of London
are certified by the recorder ; so formerly were certificates received from
the captain of Calais ; and in Cro. Eliz. 502, this court said that they would
give credit to the certificates of the judges in Wales respecting the practice
of their Court, and that the custom of the Court is a law in that Court.'

Where one brother had executed a conveyance of land to another for the
avowed object of giving the latter a colourable qualification to kill game,
and to get rid of an information then pending against him, it seems to have
been considered as quite clear that they were both guilty of conspiracy (6).

Conspiracy to Cheat and Defraud. — It is said that private deceits
coupled with conspiracy are indictable (c), and it is clearly criminal to
conspire to commit public frauds in trade (d) or public cheats (e), whether

(6) Doe d. Roberts v. Roberts, 2 B. & Aid. a candidate at an election (to a provincial

367. legislature), the electors of the division, and

1127, 1129. R.«.Mackarty,6Mod.301;2Ld. of the opposing candidate. R. i-. Sinclair

Raym. 1179. 3 Ld. Raym. 325. 2 Str. 866. [1906], 12 Canada Cr. Cas. 20.

id) Comb. 16. 1 Sess. Cas. 217. 1 Sid. (e) See post, vol. ii. p. 1501. 2 Ld. Raym.

409. 1 Ventr. 13. In Canada it has been 865. 1 Barnard. (K.B.) 330. 1 Latch. 202.

held not indictable to conspire ' to defraud 1 RoUe Rep. 2. 5 St. Tr. 486.

166 Of Criminal Conspiracy. [book I.

the fraud or cheat, if done by an individual without conspiracy would
give only a ground for civil remedies at law or in equity, or would be
criminally punishable. Conspiracies to obtain property by false pre-
tences may be treated as conspiracies to commit a crime punishable
by law (/). But it is usual also to charge the conspiracy as one to
cheat by subtle means and devices (g). And it is under the head of
conspiracy that many forms of swindling are reached by the criminal law.

Sales. — Thus it is criminal to conspire to defraud another in the sale
of goods or chattels. Thus where the defendants conspired to make a
false representation that horses were the property of a private person
and not of a horse-dealer, and were quiet to ride and drive, and thereby
induced a gentleman to buy them at a large price, they were held to have
been rightly convicted on a count which charged them with conspiring
by false pretences and subtle means to cheat the gentleman of his
money (h).

An indictment against B. and C. for conspiracy alleged that one S.
sold to B. a mare for £39, and that the prisoners, whilst the said sum was
unpaid, conspired by false and fraudulent representations that the said
mare was unsound of her wind, and that she had been examined by a
veterinary surgeon, who had pronounced her a roarer, and that B. had
sold her for £27 to induce S. to receive a much less sum in payment for
the said mare than B. had agreed to pay S. for the same, and thereby to
cheat S. of a large part of the said sum agreed to be paid for the said
mare. The mare had been sold by S. to B. for the price as alleged on
credit. The prisoners afterwards conspired to send a false account of
the mare to S., and thereby to get him to forgo part of the agreed price ;
and sent a letter to S. stating that the mare was unsound and had been
examined by a veterinary surgeon, and he had pronounced her a roarer.
In consequence of this letter S. saw C, who stated that he had examined
the mare and that she was unsound, which he knew to be false. kS. after-
wards saw B., who told him that he had sold the mare for £27 only (which
was false), and persuaded him to receive that sum in satisfaction of his
claim, but no receipt or other discharge was given. Upon a case reserved,
it was held that the indictment was sustainable, and that the facts given
in evidence did sustain it. The substance of the charge was that the
prisoners conspired to use unlawful means, namely, false representations,
to induce the prosecutor to forgo a part of his claim ; and there was no
force in the argument that, because the prisoners did not by means of
their false representations alter the right of the prosecutor to his full
claim, the indictment is not sustainable ; since in no case where a change
is made in the possession of a chattel through a fraud is the property
altered. It was not necessary that the fraud should be successful.
The offence charged and proved came within the legal definition of a
conspiracy (i).

(/ ) 8 & 9 Vict. c. 109, s. 17 (cheating at J., after consulting Coleridge, J. R. v.

games). 24 & 25 Vict. c. 96, ss. 88-90. Hudson, Bell, 263, post, p. 167.

Post, Yol. ii. p. 1514, et seq. {h) R. v. Kenrick, 5 Q.B. 49.

{g) On such an indictment it is not (i) R. v. Carlisle, Dears. 337. Cf. R. v.

necessary to prove the statutory false pre- Read, 6 Cox, 134.
tence. R. v. Yates, 6 Cox, 441, Crompton,

CHAP. Vt] Combinations to Defraud. 167

Games. — A count alleged that the prisoners unlawfully did conspire by
divers unlawful and fraudulent devices and contrivances, and by divers
false pretences, unlawfully to win from E. the sum of £2 10s. of his money,
and unlawfully to cheat him of the same. The prisoners and R. were
in a public-house, and in concert with the other two prisoners, D. placed
a pen-case on the table, and left the room to get writing-paper. Whilst
he was absent the other prisoners, H. and S., were alone with R., and H.
took up the pen-case, and took the pen from it, placing a pin in the place
of it, and put the pen he had taken out under the bottom of R.'s drinking
glass, and H. then proposed to R. to bet D., when he returned, that
there was no pen in the pen-case. R. was induced by H. and S. to stake
fifty shillings in a bet with D. that there was no pen in the pen-case,
which money R. placed on the table, and H. snatched up to hold. The
pen-case was then turned up into R.'s hand, and another pen with the
pin fell into his hand, and then the prisoners took his money. It was
contended, on a case reserved, that this was a mere deceit not concerning
the public, and that there was no false pretence on which any of the
prisoners could have been convicted of obtaining money by false pre-
tences. The prosecutor intended to cheat D., and was a party to the
fraud, and could not maintain this indictment. Pollock, C.B., said,
' We are all of opinion that the conviction is good. The expression " by
false pretences " used in the count is not to be construed in the technical
sense contended for by the counsel for the prisoners. We think that
there was abundant evidence of a conspiracy to cheat. Though it be an
ingredient in that conspiracy to induce the man who is cheated to think
that he is cheating some one else, that does not prevent those who use
that device from being amenable to punishment ' (/).

False Accounts, &e. — Where an indictment alleged that a joint stock
company had been established, the capital of which was to consist of
2,000 shares, and charged the defendants with conspiring to fabricate
a great number of other shares in addition to the said 2,000, and it
appeared that the company had not been legally established, Abbott, C.J.,
was of opinion that if, in point of fact, a combination to the effect stated
in the indictment were made out, such conduct, in point of law, con-
stituted a criminal conspiracy, notwithstanding the original imperfection
of the company's formation (k). If bankers combine to deceive and
defraud their shareholders by publishing false balance sheets, they are
indictable for a conspiracy {I).

An indictment against the manager and secretary of a joint stock
bank, contained many counts, some charging that the defendants con-
curred in making and publishing false statements of the affairs of the
bank, and others that they conspired together to do so. The prosecutors
were put to elect on which set of counts they would rely, and they having
elected to rely on the counts for conspiracy, it was held, that it was not

(?) R. V. Hudson, BeU, 263 (see 8 & 9 obtain the money, which, is the substance

Vict. 109, s. 17), Chaunell, B. : 'If the of the third count, is there not evidence for

count had omitted the words " by false the jury ? '

pretences," it would have been good.' (i) E. v. Mott, 2 0. & P. 521.

Blackburn, J. ; ' If proof was given of (l) R. v. Esdaile, 1 F. & P. 213 ; s. c. as R,

an agreement by fraudulent devices to v. Brown, 7 Cox, 442.

168 Of Criminal Consfiracy. [BOoK 1.

enough to prove that the defendants made and put forth false statements
intended and calculated to deceive, unless they had entered into a pre-
cedent and fraudulent conspiracy to do so. The chief count relied upon
not stating an intent to defraud any particular parties ; it was held, that
though there were auditors, whose duty it would be to discover any
frauds, that was no answer to the prosecution, if the defendants were
party to such conspiracy to deceive them and the directors. But, on
the other hand, the jury were told that evidence that the directors were
privy to all that was done was very material, with a view to negative
such conspiracy, on the part of the defendants, to deceive (m).

An indictment charged that the defendants H., B., and M., fraudu-
lently and unlawfully conspired that B. should write his acceptance to a
certain paper- writing, purporting to be a bill of exchange, &c., for £30 (the
tenor of which was set out), in order that H. might, by such acceptance,
and by the name M. being indorsed on the back thereof, negotiate the said
paper-writing as a good bill of exchange, truly drawn at Bath, by one
J. C, for S. and Co., as partners in the business of bankers, under the
style of Bath Bank, as persons well known to them the said defendants,
and thereby fraudulently to obtain from the King's subjects goods and
monies ; that B., in pursuance of such conspiracy and agreement, did
fraudulently and unlawfully write his acceptance to the said paper- writing,
well knowing the firm of S. & Co. to be fictitious ; that the defendants
procured the indorsement ' B. M.' to be written on the same, and that
the said H., in pursuance of such fraudulent conspiracy, did utter the
said paper-writing to one S. R., as and for a good bill of exchange, truly
drawn, &c., and accepted by the said B. as a person able to pay the said
sum of £30, in order to negotiate the same, and by means thereof did
fraudulently obtain a gold watch, value eighteen guineas, and £11 2s. in
money ; whereas, in truth, at the time of drawing, accepting, and uttering
the said bill, there were no such persons as S. & Co. in the business of
bankers at Bath, and the said B. was not of sufficient abihty to pay the
said £30, they, the defendants, well knowing the same, &c., whereby
they defrauded the said S. R. of the said goods and monies. The facts
so charged being fully proved, the defendants were convicted (n).

It has been held criminal to conspire to cause the conspirators or
others to be believed persons of large property for the purpose of defraud-
ing tradesmen (o) : and to conspire to enable a person to get goods on
credit by means of a false character, knowing that he did not intend to
pay for them (p).

Knock outs. — In Levi v. Levi (q), an action for slander, it appeared
that certain brokers were in the habit of agreeing together to attend
sales by auction, and that one of them only should bid for any particular
article, and that after the sale they should have a meeting consisting of

(m) R. V. Burch, 4 F. & F. 407. See R. L.J. In this case it was ruled that obtain-

V. Barry, 4 F. & F. 389. ing credit without means to pay though not

(n) R. V. Hevey, 1 Leach, 229 : 2 East, criminal was unlawful. By 32 & 33 Viet.

P.C. 8^6. c. 62, s. 13 (1), it is a misdemeanor to obtain

(o) R. V. Roberts, 1 Camp. 339, EUen- credit under false pretences or by means of

borough, C.J. See R. v. Whitehouse, 6 any other fraud. Fide po.s7, Vol. ii. pp. 1451

Cox, 38, post, p. 195. et seq.

{p) R. V. Orman, 14 Cox, 381, Bramwell, {q) 6 C. & P. 239.

CHAP. VI.] Combinations to Defraud. 169

themselves only, at another place, to put up to sale among themselves,
at a fair price, the goods that each had bought at the auction, and that
the difference between the price at which the goods were bought at the
auction, and the fair price at this private resale, should be shared among
them ; Gurney, B., was of opinion that, as owners of goods had a right
to expect at an auction that there would be an open competition from
the public, if a knot of men went to an auction upon an agreement among
themselves of the kind that had been described, they were guilty of an
indictable offence, and might be tried for a conspiracy. But this ruling
has in a later case of higher authority been declared to be a mere nisi
prius dictum (r).

Mock Auctions. — A mock auction, with sham bidders, who pretend
to be real bidders, for the purpose of selling goods at prices grossly above
their worth, is an offence at common law ; and persons aiding or abetting
such a proceeding may be indicted for a conspiracy with intent to
defraud (s).

I" Bankruptcy. — It is criminal to conspire to defeat creditors by disposing
of goods in contemplation of bankruptcy (t) ; and to conspire to conceal
and embezzle the personal estate of a bankrupt (u) ; or within four
months before the presentation of a bankruptcy petition to fraudulently
remove the debtor's property to the value of £10 (v), and this last form
of conspiracy is criminal if the agreement to remove the goods was made
in contemplation of bankruptcy, even if in the result no adjudication
was obtained (w).

Partnership Matters. — It has been held criminal to conspire to cheat
by false representations as to the amount of profits of a business
carried on by one of the defendants, whereby they induced a third person
to enter into partnership with one of them (x). On the dissolution of
a partnership between the prisoner and L., the prisoner agreed with
W. and P. to forge documents, and to make false entries in the books
and accounts of a partnership, so as to make it appear that debts existed
and were owing which did not exist, so as to reduce the amount divisible
between the partners, with intent to cheat and defraud L. Held, that
the prisoner was rightly convicted of conspiring with W. and P. to
defraud L. (y).

Stocks and Shares. — The defendants were indicted, as directors and

{r) Doolubdass v. Ram Loll, 5 Moore {v) Heymann v. E., L. R. 8 Q.B. 102.

Ind. App. 109 : 18 E. R. 836, Parke, B. This case is reported mainly as to the form

(a) R. V. Lewis, 11 Cox, 404, Willes, J. o£ indictment. In such an indictment it

{t) R. V. Hall, 1 P. & F. 33, Watson, B. is expedient and perhaps essential to state

See the provisions of the Debtors Act, 1869, that the conspiracy was formed in contem-

post. Vol. ii. p. 1451. plation of bankruptcy. See Myerson i\

(u) See R. ■;;. Jones, 4 B. & Ad. 345 : 1 R., 5 AustraHan C. L. R. 597, where

N. & M. 78. This case was decided on Heymann v. R. is discussed.

6 Geo. IV. c. 16 (rep.). The old Bankruptcy [w) Ibid.

Acts were limited to traders. The Debtors {x) R. ti. Timothy, 1 F. & P. 39, Channell,

Act, 1869, and the Bankruptcy Acts, 1883 B. It was held that the conspiracy was

and 1890, arenotsohmited. InR.w. Jones indictable, although the representations,

it was laid down that the indictment not being in writing, gave no cause of action,

must set out the petitioning creditor's 9 Geo. IV. c. 14, s. 16.

debt, the trading, and the act of bank- (y) R. v. Warburton, L. R. 1 C. C. R.

ruptoy. This seems now to be needless. 274 : 40 L. J. M. C. 22.
32 & 33 Vict. c. 62, s. 19.

170 Of Criminal Conspiracy. [book i.

promoters of a limited company, for conspiring to induce the committee
of the Stock Exchange to order a quotation of the shares of the company
in their official list, and thereby to induce and persuade divers subjects
of the Queen, who should thereafter buy and sell the shares of the said
company, to believe that the said company was duly formed and con-
stituted, and had in all respects complied with the rules and regulations
of the . . . Stock Exchange, so as to entitle the said company to have
their shares quoted in the official list of the said Stock Exchange. Held,
that the indictment disclosed an indictable offence, since there was an
agreement to cheat and defraud by means of false pretences those subjects
who might buy shares in the company (2). But in Ireland an indict-
ment charging a conspiracy ' by false pretences to defraud all such
persons as should apply ' to the prisoners for a loan of money, was
held bad (a).

It is criminal to conspire on a particular day by false rumours to
raise the price of the public government funds, with intent to injure the
subjects who should purchase on that day, and that the indictment was
well enough without specifying the particular persons who purchased
as the persons intended to be injured, and that the pubhc government
funds of this kingdom might mean either British or Irish funds, which
since the Union were each a part of the United Kingdom. After argu-
ment in arrest of judgment. Lord Ellenborough, C. J., said : ' I am perfectly
clear that there is not any ground for the motion in arrest of judgment.
A public mischief is stated as the object of this conspiracy ; the conspiracy
is by false rumours to raise the price of the public funds and securities,
and the crime lies in the act of conspiracy and combination to effect
that purpose, and would have been complete, although it had not been
pursued to its consequences, or the parties had not been able to carry
it into effect. The purpose itself is mischievous ; it strikes at the price
of a vendible commodity in the market, and if it gives a fictitious price
by means of false rumours, it is a fraud levelled against all the pubhc,
for it is against all such as may possibly have anything to do with the
funds on that particular day.' Bayley, J., said : ' It is not necessary
to constitute this an offence that it should be prejudicial to the pubhc
in its aggregate capacity, or to all the King's subjects, but it is enough
if it be prejudicial to a class of the subjects. Here then is a conspiracy
to effect an illegal end, and not only so, but to effect it by illegal means,
because to raise the funds by false rumours is by illegal means. And
the end is illegal, for it is to create a temporary rise in the funds without
any foundation, the necessary consequence of which must be to prejudice
all those who become purchasers during the period of that fluctuation.'
Dampier, J. : ' I own I cannot raise a doubt, but that this is a complete
crime of conspiracy according to any definition of it. The means used
are wrong, they were false rumours ; the object is wrong, it was to give
a false value to a commodity in the public market, which was injurious
to those who had to purchase ' (b).

{z) Aspinallu. R., 1 Q.B.D. 738 : 2 Q.B.D. decision was treated as correct in Scott v.

48; 46 L. J. M. C. 145. Brown [1892], 2 Q.B. 724 (C.A.), and applied

(a) White v. R., 13 Cox, 318 (Ir.). in R. v. Brailsford [1905], 2 K.B. 730, onte,

(6) R. i-. de Berenger, 3 M. & S. 67. This p. 151. Cf. R. v. Gurney, 11 Cox, 414.

CHAP, vio Combinations to Commit Wrongs. 171

It seems also to be criminal to raise the price of a commodity by
fictitious sales (c). And it has been held criminal to conspire to deal
fraudulently in railway tickets [d).

Conspiracy to do Acts not wrongful if done by one Person. — In many
cases an agreement to do a certain thing has been considered as the subject
of an indictment for conspiracy at common law, though the same act, if
done separately by each individual without any agreement amongst
themselves, would not have been criminal or even actionable (e).

The application of this theory has caused much difficulty and contro-
versy, especially as to combinations with reference to trade, or of
employers against workmen or workmen against employers (/) ; and
the rule has been altered by statute with respect to certain acts done
legitimately and not maliciously in furtherance of trade disputes (g).

This theory has been applied to an agreement between several to main-
tain each other right or wrong (h), and to a combination between military
officers of the East India Company to resign their commissions in order
to intimidate the Company into granting certain allowances («').

It has been said with respect to premeditated and systematic tumults
at a theatre, that ' the audience have certainly a right to express by
applause or hisses the sensations which naturally present themselves
at the moment ; and nobody has ever hindered, or would ever question,
the exercise of that right. But if any body of men were to go to the
theatre with the settled intention of hissing an actor or even of damning
a piece, there can be no doubt that such a deliberate and preconcerted
scheme would amount to a conspiracy, and that the persons concerned
in it might be brought to punishment' (/).

The accepted authority with respect to this branch of the law of
conspiracy is the judgment of Bowen, L.J., in Mogul Steamship Co. v.
McGregor, Gow & Co. (k), approved and adopted in the H. L., on appeal (Z)

It would seem that the acts of the defen- (j) By Sir James Mansfield, C. J., in Clif-

dants were criminal independently of con- ford v. Brandon, 2 Camp. 369. See Gregory

spiracy. 7 & 8 Vict. u. 24, s. 1, post, Bk. v. Duke of Brunswick, 6 M. & G. 953, ap-

xi. u. ix., specially refers to and keeps alive proved in Quinn v. Leathem [1901], A.C.

' the offence of spreading or conspiring to 495, 503. In an unreported case, K.B. 18

spread any false rumour with intent to or 19 Geo. III., Lord Mansfield is said to

enhance or decry the price of any goods or have ruled that where several conspired to

merchandise.' hiss at the Birmingham theatre it was

This was a motion for a criminal informa- separately. This seems to be R. v. Leigh,

tion for a conspiracy to raise the price of 1 C. & K. 28n. ; 2 Camp. 372n. ; 6 M. & G.

oil by making fictitious sales, and the Court 217n. ; 4 Wentw. PI. 443. See Wright on

held that it must appear that two combined Conspiracy, 37.

together, as it was no offence for an indi- (k) 23 Q.B.D. 598. In this case an

vidual separately to endeavour. associated body of traders endeavoured to

{d) R. V. Absolon, 1 F. & F. 498. get the whole of a limited trade into their

(e) R. 0. Mawbey, 6 T. R. 636, Grose, J. own hands by offering exceptional and

R. V. Journeymen Tailors of Cambridge, very favourable terms to customers who

8 Mod. 11 (a common-law conspiracy by would deal exclusively with them, — terms

workmen to raise wages). R. v. Rowlands, so favourable that but for the object of

17 Q.B. 671. R. V. Parnell, 14 Cox, 508. keeping the trade to themselves they would

(/) These are discussed posi, p. 176 eS 565'. not have given such terms, but with the

(?) Post, p. 177. See Quinn v. Leathem, intention not of injuring their rivals, but of

[1901], A.C. 495, 512, Ld. Maonaghten. preventing rival traders from competing

(h) 9 Co. Rep. 56. with them. The combination was held not

(i) See Vertue v. Clive, 4 Burr. 2472, to be an indictable conspiracy.

2476, Yates, J. {I) [1892] A.C. 25.

172 Of Cnminal Consfiracy. [BOOK 1.

and in subsequent cases (m). He said, ' Of the general proposition that
certain kinds of conduct not criminal in any one individual may become
criminal if done by combination among several, there can be no doubt.
The distinction is based on sound reason, for a combination may make
oppressive or dangerous that which if it proceeded only from a single
person would be otherwise, and the very fact of the combination may
shew that the object is simply to do harm and not to exercise one's
own just rights (w). In the application of this undoubted principle
it is necessary to be very careful not to press the doctrine of illegal con-
spiracy beyond that which is necessary for the protection of individuals
or of the public (o). . . . But what is the definition of an illegal com-
bination ? It is an agreement by one or more to do an unlawful act,
or to do a lawful act by unlawful means ; O'Connell v. R. (p), R. v.
Parnell (q), and the question to be solved is whether there has been
any such agreement here. Have the defendants combined to do an
unlawful act ? Have they combined to do a lawful act by unlawful
means ? . . . The truth is that the combination of capital for purposes
of trade and competition is a very different thing from such a com-
bination of several persons against one with a view to harm him as
falls under the head of an indictable conspiracy. There is no just cause
or excuse in the latter class of cases. There is such a just cause or excuse
in the former. There are cases in which the very fact of a combination
is evidence of a design to do that which is hurtful without just cause, —
is evidence (to use a technical expression) of malice. But it is per-
fectly legitimate, as it seems to me, to combine capital for all the mere
purposes of trade for which capital may, apart from combination, be
legitimately used in trade. . . . Would it be an indictable conspiracy
to agree to drink up all the water from a common spring in a time of
drought ; to buy up by preconcerted action all the provisions in a
market or district in times of scarcity (see R. v. Waddington) (r) ;
to combine to purchase all the shares of a company against a coming
settling day, or to agree to give away articles of trade gratis in order
to withdraw custom from a trade ? May two itinerant match- vendors
combine to sell matches below their value in order by competition to
drive a third match-vendor from the street ? . . . The question must
be decided by the application of the test I have indicated. Assume
that what is done is intentional and that it is calculated to do harm
to others. Then comes the question, Was it done without just cause

(to) e.g., Allen v. Flood [1898], A.C. 1, law of conspiracy is based on this undeni-

93, Lord Watson. Quinn w. Leathern [1901], able truth.'
A.C. 495, 536, Lord Lindley. (o) See hereon Giblan v. National Amal-

(m) In S. Wales Miners Federation v. gamated Labourers Union [1903], 2 K.B.

Glamorgan Coal Co. [1905], A.C. 239, 252, 600, 622, Stirling, L.J.
Ld. Lindley said : ' It is useless to try and (p) 11 CI. & F. 155 : 5 St. Tr. (N. S.) 1.

conceal the fact that an organised body of (q) 14 Cox, 508, and see Mulcahy v. B.,

men working together can produce results ante, p. 146.

very different from those which can be (r) I East 143. In this case it was held

produced by an individual without assist- that even if a convicted prisoner waived his

ance. Moreover, laws adapted to indivi- motion in arrest of judgment the Court

duals not acting in concert with others would not pass sentence if they could see

require modification and extension if they that no crime was shewn. SeeR.'w. Pluramer

are to be applied with effect to large bodies [1902], 2 K.B. 339, 346.
of persons acting in concert. The English

CHAP. VI.] Combinations to Commit Wrongs. 173

or oxcuse ? If it was bona fide done in the use of a man's own property,
in the exercise of a man's own trade, such legal justification would, I
think, exist not the less because what was done might seem to others to
be selfish or unreasonable (see E. ■;;. Rowlands, 17 Q.B. 671). But such
legal justification would not exist when the act was merely done with
the intention of causing temporal harm without reference to one's own
lawful gain or the lawful enjoyment of one's own rights. The good
sense of the tribunal which had to decide would have to analyse the
circumstances, and to discover on which side of the line each case fell.
But if the real object were to enjoy what was one's own, or to acquire
for one's self some advantage in one's property or trade, and what was
done was done honestly, peaceably, and without any of the illegal acts
before referred to, it could not in my opinion properly be said that it
was done without just cause or excuse. One may with advantage borrow
for the benefit of traders what was said by Erie, J., in R. v. Rowlands,
17 Q.B. 671, 687, of workmen and of masters. " The intention of
the law is at present to allow either of them to follow the dictates of
their own will with respect to their own actions and their own property,
and either, I believe, has a right to study to promote his own advantage
or to combine with others to promote their mutual advantage." '

It has been held criminal for two or more to combine to make for sale
pirated copies of copyright music in order to obtain profits out of that
music to which the conspirators are not entitled. Such a combination
has been regarded as a conspiracy for the unlawful purpose of depriving
the owner of his property or civil rights (s).

' A combination to violate without just cause ' (t) ' private rights, con-
tractual or other, in which the pubUc has a sufficient interest, is a criminal
conspiracy if the violation of the private right is an actionable wrong' (u).
' It is not necessary, in order to constitute a conspiracy, that the acts
agreed to be done should be acts which if done would be criminal. It is
enough that the acts agreed to be done, although not criminal, are wrong-
ful, i.e., amount to a civil wrong ' (v). An agreement by members of either
House of Parliament to deceive the House by making false defamatory
statements in Parliament has been held not to be indictable (w).

A combination without justification (x) to insult, annoy (y), injure,
or impoverish (z) another person is a criminal conspiracy.

In R. V. Starling (a), it was held criminal to combine to depauperate

(«) B. V. Willetts [1906], 70 J.P. 127, {x) Quinn v. Leathern [1901], A.C. 495.

Bosanquet, Common Serjeant. It is not Giblan v. National Amalgamated Lab-

a criminal act to infringe copyright, nor is ourers Union [1903], 2 K.B. 600, 618,

it larceny to pirate music. R. v. Kidd Romer, L.J.

[1907], 72 J.P. 104, Bosanquet, C.S. (y) Mogul case [1892], A.O. 25, 38, ap-

42 L. J. (Newsp.) 785. In 1906 it was proving the ruling in B. v. Druitt, 10 Cox,

made an offence to be in possession of 592.
pirated music (6 Edw. VII. c. 36, s. 1). (z) Mogul SS. Co. v. McGregor [1892],

(«) Mogul SS. Co. V. McGregor, 23 Q.B.D. A.C. 25, 38. Quinn v. Leathern [1901], A.

614, Bowen, L.J., ante, p. 171. C. 495, 511, Lord Macnaghten, and see

(u) Mogul SS. Co.-w. McGregor [1892], Allen v. Flood [1898], A.C. 1, 72.
A.C. 25, 48, Lord Bramwell. (a) 1 Sid. 174 ; 1 Lev. 125 ; 1 Keb. 650,

(u) B. V. Warburton, L. B. 1 C. C. B. 276, 655. In Thorp's case, 5 Mod. 224, it seems

cited with approval in Quinn v Leathem to have been thought that the conspiracy

[1901], A.C. 495, 529, Ld. Brampton. in R. v. Starling was to brew nothing but

1.1V) Ex -parte Wason, 38 L. J. Q.B. 302. small beer.

174 Of Criminal Conspiracy. [book i.

the farmers of excise, because the information shewed that the excise
was parcel of the revenue of the crown, and so the impoverishment of the
farmers of excise tended to prejudice the revenue of the crown. This
case is treated in E. v. Daniell (6), as one to do an act of a pubUc nature.

In R. V. Eccles (c), several persons were convicted on an indictment
which charged them with conspiring to impoverish one H. B., a tailor,
and to prevent him, by indirect means, from carrying on his trade. This,
however, appears to have been considered as a conspiracy in restraint of
trade, and so far a conspiracy to do an unlawful act affecting the pubUc (d).
So far as this case depends on the theory of restraint of trade, it seems
now of little authority (e).

An indictment cannot be supported for a conspiracy to deprive a
man of the ofSce of secretary to an illegal unincorporated trading company.
EUenborough, C.J., said that the society being certainly illegal, to
deprive an individual of an office in it could not be treated as an injury :
and that when the prosecutor was secretary to the society, instead of
having an interest which the law would protect, he was guilty of a
crime (/').

In R. V. Parnell (gr), it was held to be criminal to combine to sohcit
tenants of land in Ireland to refuse to pay rent, and to prevent tenants from
paying their lawful rent by threatening them with boycotting or social
excommunication. This ruling was approved in Quinn v. Leathern (h).

Trespass to Land. — InR. v. Turner (i), it was ruled that an indictment
would not lie for conspiring to commit a civil trespass to land, by agree-
ing to go, and by going into, a preserve for hares, the property of another,
for the purpose of snaring them, though it was alleged to be done in the
night-time, and that the defendants were armed with offensive weapons,
for the purpose of opposing resistance to any endeavours to apprehend or
obstruct them {i). Lord EUenborough, C.J., in pronouncing the judg-
ment of the Court, said : ' I should be sorry that the cases in conspiracy
against individuals, which have gone far enough, should be pushed still
farther. I should be sorry to have it doubted whether persons agreeing
to go and sport upon another's ground, in other words, to commit a civil
trespass, should be thereby in peril of an indictment for an oSence
which would subject them to infamous punishment ' (m). It may be
observed that it was not stated in the indictment that the weapons were

(6) [1704] 6 Mod. 99 j 1 SaUc. 380. (i) 13 East, 228, 231. 'But qu. as to

Wright on Conspiracy, 38. what is reported in this case (p. 230) to

Rep. 583n. ; 1 Hawk. c. 72, s. 2. The in- the course of the argument, viz. that " all

dictment in R. v. Druitt, 10 Cox, 572, was the cases in conspiracy proceed upon the

framed on this case. ground that the object of the combination

{d) R. V. Turner, 13 East, 228, Ellen- is to be effected by some falsity." The

borough, C.J. See R. v. Duffield, 5 Cox, facts stated in this case would constitute

404, Erie, J. R. v. Rowlands, 17 Q.B. 671, an offence within 9 Geo. IV. c. 69, and it is

Campbell, C.J. Mogul Steamship Co. v. conceived that a conspiracy to commit an

McGregor, Gow & Co., 23 Q.B.D. at p. 631, offence within that statute would be in-

Fry, L.J. diotable, although not carried into effect.

(/ ) R. V. Stratton, 1 Camp. 549n. See the observations on this case in Deac.

R. V. Hunt, 8 C. & P. 642. Game L. 175." C. S. G.

(o) 14 Cox, 509. (m) Vide ante, p. 160, note Iv).

(h) [1901] A,C. 495, 511. '^'

CHAP. VI. ] Combinations to Commit Wrongs. 175

dangerous, nor that the defendants conspired to go, &c., wiih strong hand.
But in E. V. Kowlands [j), Campbell, C.J., said of E. v. Turner : ' I
have no doubt whatever that it was wrongly decided. Going into the
prosecutor's close against his will, armed with ofiensive weapons for the
purpose of opposing any persons who should endeavour to apprehend,
obstruct, or prevent them, would in itself be an indictable offence ; and
conspiring to commit such an ofEence must be an indictable conspiracy.'

In E. V. Druitt (jj), the indictment was for a conspiracy by un-
lawful ways, contrivances, and stratagems to impoverish P. and others
in their trade and business, and to restrain their freedom of trade
and of personal action. The defendants were members of a tailors' trade
union, and during a strike instigated by the union picketed the doors of
employers to note work-people who went in and out, in order to deter
them from continuing to work and to induce them to join the union.
This conduct was ruled to be intimidation and molestation and obstruction
within the statutes then restricting the combination of workmen (6 Geo.
IV. c. 129, s. 3, and 22 Vict. c. 34, s. 1). Bramwell, B., ruled that it was
not an offence to picket if the picketing were done in a way to excite no
reasonable alarm, and not to coerce or annoy those who were subject to
it, and that peaceful persuasion without coercion or intimidation was
lawful (k). He also said that the right to personal liberty which the law
protected included liberty of the mind and will as well as of the body (I),
and that ' if any set of men agreed among themselves to coerce that
liberty of mind and thought by compulsion and restraint they would be
guilty of a criminal offence, namely, that of conspiring against the liberty
of mind and freedom of will of those towards whom they so conducted
themselves. He was referring to coercion or compulsion — something
that was unpleasant and annoying to the mind operated upon — and he
laid it down as clear and undoubted law that if two or more persons
agreed that they would by any such means co-operate together against
that liberty they would be guilty of an indictable offence.' This ruling
was discussed and questioned by Coleridge, C.J., in Gibson v. Lawson {m),
and the Mogul case {n) : but in the latter case (o) Lord Halsbury said :
'I am unable to concur with the Lord Chief Justice's criticism, if
its meaning was rightly interpreted, which I very much doubt, on the
observations made by my noble and learned friend Lord Bramwell in
E. V. Druitt, if that was intended to treat as doubtful the proposition
that a combination to insult and annoy a person would be an indictable
conspiracy. I should have thought it beyond all doubt or question that
such a combination would be an indictable misdemeanor.'

In E. V. Bunn ( f), Brett, J., ruled that an indictment would He at com-
mon law for conspiring to commit an offence which under statute was
summarily punishable. The indictment was for conspiracy by gas stokers
to force their employers to conduct their business contrary to their own
will by improper threats or improper molestation, by forcing the employers

(j) 17 Q.B. 671. Leathern [1901], A.C. 495, 525, Ld. Bramp-

(m) [1867] 10 Cox, 592. (m) [1891] 2 Q.B. 545. [ton.

(k) It is so declared by 6 Edw. VII. l.. 47, (n) 21 Q.B.D. 551.

B. 2 (1), post. Vol. ii. p. 1912. (o) [1892] A.C. 25, 38.

(/) Quoted with approval in Quinn v. (p) [1872] 12 Cox, 316.

176 Of Criminal GonsfircKij. [book i.

against their will to employ a man whom they objected to employ, and
alleged that they endeavoured to obtain the object of their combination
by simultaneously breaking their contracts of service. The result of
this combination was to create a great public mischief by leaving London
unlit. Other ruHngs in the case led to the repeal of 34 & 35 Vict. c. 32,
and the enacting of 38 & 39 Vict. c. 86 {q).

Conspiracies with Reference to Trade Disputes. — Prior to 1871, it had
often been held criminal to conspire under certain circumstances — for
workmen to combine to raise the rate of wages (r) ; or to injure or obstruct
employers (s) ; or to induce workmen to leave their employment {t) ;
or to procure their discharge (m) ; or to strike {v) ; or to picket the works
of the employers {w).

Many cases in the books relate to such conspiracies. Certain of these
cases relate to conspiracies in breach of statutes relating to combination
by workmen. The earlier Acts were repealed in 1824, and replaced by
5 Geo. IV. c. 95, itself repealed in 1826, and replaced by 6 Geo. IV.
c. 129. That Act and subsequent amending Acts were repealed in 1871 [x]
and replaced by the Trade Union Acts, 1871 {y), and 1876 (z), and by
the Conspiracy and Protection of Property Act, 1875 {a), and the Trade
Disputes Act, 1906 (6). The portions of these Acts relating to the con-
stitution, registration, and internal government of trade unions are
not relevant to the purposes of this treatise (c). By sect. 16 of the Act
of 1876 [d) : The term " trade union " means any combination, whether
temporary or permanent, for regulating the relations between workmen
and masters, or between workmen and workmen, or between masters
and masters, or for imposing restrictive conditions on the conduct of
any trade or business, whether such combination would or would not,
if the principal Act (of 1871) had not been passed, have been deemed to
have been an unlawful combination by reason of some one or more of its

(g) See Gibson v. Lawson [1891], 2 Q.B. (o) 38 & 39 Vict. c. 86, passed on the

545, where R. v. Buun is disapproved, as reports of a Royal Commission o£ 1874.

laying down that acts expressly legalised (Pari. Pap. 1874, c. 1094, & 1875, o. 1157.)

by statute remain crimes at common law. (6) 6 Edw. VII. c. 47, passed after the

And see Wright on Conspiracy, 50-59. report of a Royal Commission. (Pari. Pap.

There seems nothing to prevent indictment 1906, c. 2825.)

at common law for combining to do acts (c) By is. 18 of the Act of 1871, ' If

which if done by individuals are punishable any person with intent to mislead or de-

under the Act of 1875 {vide post, p. 177). fraud gives to any member of a trade union

(r) R. V. Tailors of Cambridge [1721], registered under this Act, or to any person

8 Mod. 10. R. V. Mawbey, 6 T. R. 119. intending or applying to become a member

Quinn v. Leathem [1901], A.C. 495, 530. of such trade union, a copy of any rules or

3 Steph. Hist. Cr. Law, 217. Wright on of any alterations or amendments of the

Conspiracy, 64. same other than those respectively which

(«) Hilton V. Eckersley, 6 E. & B. 47. R. exist for the time being, on the pretence

V. Rowlands, 17 Q.B. 671. that the same are the existiug rules of such

(«) R. 0. Rowlands, 5 Cox, 436 (in error, trade union, or that there are no other rules

17 Q.B. 671, supra). In this case the of such trade union, or if any person with

question of intimidation was involved. the intent aforesaid gives a copy of any

(m) R. v. Bykerdyke, 1 M. & Rob. 179. rules to any person on the pretence that

{v) Wright on Conspiracy, 57. such rules are the rules of a trade union

{w) R. V. Druitt, ante, p. 175. registered under this Act which is not so

Ix) 34 & 35 Vict. u. 32, s. 7. registered, every person so offending shall

(y) 34 & 35 Vict. c. 31, passed on the be deemed guilty of misdemeanor.'

report of a Royal Commission of 1867, {d) This section supersedes s 23 of the

made in 1869 (Pari. Pap., 1869, o. 4123.) Act of 1871.

(z) 39 & 40 Vict. 0. 22.

ChAp. vi.] Comhinations as to Trade Disputes, 171

purposes being in restraint of trade.' By sect. 5 (2) of the Trade Disputes
Act, 1906 (6 Edw. VII. c. 47), this definition is extended so as to ' include
any combination as therein defined, notwithstanding that such combina-
tion may be the branch of a trade union.' To this definition the following
proviso of sect. 23 of the Act of 1871 applies : —
' Provided that this Act shall not affect —

1. Any agreement between partners as to their own business ;

2. Any agreement between an employer and those employed by him

as to such employment ;

3. Any agreement in consideration of the sale of the goodwUl of a

business or of instruction in any profession, trade, or handicraft.'

'Trade Dispute.' — In the Conspiracy and Protection of Property Act,
1875 (38 & 39 Vict. c. 86), and in the Trade Disputes Act, 1906 (6 Edw. VII.
c. 47), the expression ' trade dispute ' means any dispute between employers
and workmen, or between workmen and workmen, which is connected
with the employment or non-employment, or the terms of employment,
or with the conditions of labour of any persons, and the expression ' work-
men ' means all persons employed in trade or industry, whether or not
in the employment of the employer with whom a trade dispute arises (e).

Restraint of Trade. — By the Act of 1871, sect. 2, ' The purposes
of any trade union shall not, by reason merely that they are in restraint
of trade, be deemed to be unlawful, so as to render any member of such
trade union liable to criminal prosecution for conspiracy or otherwise ' (/).

By sect. 3, ' The purposes of any trade union shall not, by reason
merely that they are in restraint of trade, be unlawful so as to render
void or voidable any agreement or trust.'

Offences punishable under the above Acts independently of
conspiracy are dealt with in Book XI. Chapter VIII.

By sect. 3 of the Conspiracy and Protection of Property Act, 1875
(38 & 39 Vict. c. 86), as amended by sect. 1 of the Trade Disputes Act,
1906, ' An agreement or combination by two or more persons to
do or procure to be done any act in contemplation or furtherance of a
trade dispute (g) . . . shall not be indictable as a conspiracy if such act
committed by one person would not be punishable as a crime ' (h).

(e) 6 Edw. VII. u. 47, s. 5 (3), passed in 2 Q.B. 545. (As to earlier views of

consequence of the decision in Quinn v. the oriminaUty of strikes, see Hilton u.

Leathern [1901], A.C. 495. Eckersley, 6 E. & B. 47. Walsby v. Anley,

(/) See Quinn v. Leathern [1901], A.C. 30 L. J. M. C. 121. Erie on Trade Unions,

495, 526, Ld. Brampton. The Act is not 85.) Wood v. Bowron, L. R. 2 Q.B. 21 ;

limited to registered trade unions. See Wright on Conspiracy, 43. It would be

Chamberlain's Wharf, Ltd. v. Smith [1900], more accurate to say that the Act takes

2 Ch. 605. Registration is not compulsory, away the criminality of combinations in the

and if the purposes of the trade union are cases to which it applies. It does not affect

unlawful, registration is void (34 & 35 Vict. civil remedies in respect of such combina-

c. 31, s. 6). tions. Quinn v. Leathem [1901], A.C. 495,

(g) 6 Edw. VII. 0. 47, s. 5 (2), defines 511, Ld. Macnaghten ; 527, Ld. Brampton.

' trade dispute,' ut supra, and repeals the And the words ' the broadest terms ' are

words between ' employer ' and ' workman ' too wide. ' It is plainly legal now for

in 38 & 39 Vict. c. 86, s. 3, as to which, workmen to combine not to work except on

see Quinn v. Leathem [1901], A.C. 495. their own terms. On the other hand, it is

(A) It has been held that this clause dis- clearly illegal for them or anyone else, by

tinctly legalises strikes in the broadest force or threats of violence, to prevent

terms, subject to the exceptions enume- other people from working on any terms

rated in ss. 4, 5. Gibson v. Lawson [1891], which they think proper,' ibid. 541, Ld.

VOL. I. N

178 Of Criminal Conspira-cy. [book I.

' An act done in pursuance of an agreement or combination by two
or more persons shall, if done in contemplation or furtherance of a trade
dispute, not be actionable unless the act, if done without such agreement
or combination, would be actionable ' (i).

Nothing in this section shall exempt from punishment any persons
guilty of a conspiracy for which a punishment is awarded by any Act of
Parliament.

Nothing in this section shall affect the law relating to riot, unlawful
assembly, breach of the peace, or sedition, or any offence against the
State or the Sovereign.

A crime for the purposes of this section means an offence punishable
on indictment, or an offence which is punishable on summary conviction
and for the commission of which the offender is liable, under the statute
making the offence punishable, to be imprisoned either absolutely or at
the discretion of the Court, as an alternative for some other punishment.

Where a person is convicted of any such agreement or combination as
aforesaid to do or procure to be done an act which is punishable only on
summary conviction, and is sentenced to imprisonment, the imprison-
ment shall not exceed three months, or such longer time, if any, as may
have been prescribed by the statute for the punishment of the said act
when committed by one person ' {j}.

The offences by individuals against the Act are dealt with post,
Book XI. Chapter VIII.

Jurisdiction, Venue and Court of Trial. — A conspiracy within the
realm, to do outside the realm, and outside the Admiralty jurisdiction
acts which would be crimes by English law, appears to be indictable
in England. In the case of conspiracy to murder, this is definitely
provided by statute (h).

In Gibbon Wakefield's case (l), the conspiracy was to abduct an heiress
and to marry her in Scotland. By the construction put by some of the
judges on the statute on which the crime of abduction then depended,
it was of the essence of the crime that the purposes of the abduction
should be consummated, and they took the view that the conspiracy
did not amount to an attempt to commit the full crime in England.
But the law of conspiracy gave jurisdiction by attaching criminahty to
the agreement, as evidenced by acts done in England in furtherance
of the design, although these acts did not amount to an attempt to
commit the crime in England (m).

In E. V. Kohn (n), the prisoner, a foreigner, was indicted for conspiring
at Ramsgate with the owner, the master, and the mate of a ship, to
cast away the ship, with intent to prejudice the underwriters. (See

Lindley. He held that a combination to {j) This Act does not apply to seamen

annoy a person's customers, so as to compel or apprentices to the sea service (s. 16).

them to leave him unless he obeyed the R. v. Lynch [1898], 1 Q.B. 61 ; Kennedy i:

combination, was not permitted by s. 3. Cowie [1891], 1 Q.B. 77.

See Lyons v. Wilkins (No. 1) [1896], 1 Ch. {k) 24 & 25 Vict. c. 100, s. 4, which re-

811 : No. 2 [1899], 1 Ch. 255. moved doubts raised in R. v. Bernard, 8 St.

(i) This paragraph was added by 6 Edw. Tr. (N. S.) 887 ; 1 P. & P. 240.

VII. u. 47, s. 1, to override Quinn o. Lea,- (I) Ante, p. 160.

them, ubi sup., and apphes to civil remedies (m) Wright on Conspiracy, 81.

s. 3 of the Act of 1875, as amended in 1906. (») 4 P. & P. 68.

CHAP. VI.] Jurisdiction, Venue and Court of Trial. 179

24 & 25 Vict. c. 97, s. 43.) The ship was a Prussian merchant vessel,
and arrived at Ramsgate, and afterwards sailed thence, and she was in
six days' time scuttled and sunk by the prisoner and others. The prisoner
was apprehended, and made statements implicating himself, the captain,
and the mate. He said that the mate had said in Ramsgate that the
ship would never reach her place of destination, and spoke of the making
away of the ship in an unlawful manner ; and when the prisoner said :
' Then we had better sink her here at once on the bar,' the mate replied
that was too close to land to make away with the ship in an unlawful
manner, or to sink her. Martin, B., told the jury : ' The ship was a
foreign ship, and she was sunk by foreigners far from the English coast,
and so out of the jurisdiction of our courts. But the conspiracy in this
country to commit the offence is criminal by our law. And this case does
not raise the point which arose in R. v. Bernard, 1 F. & F. 240 (o), as
to a conspiracy limited to a criminal offence to be committed abroad.
For here, if the prisoner was party to the conspiracy at all, it was not
so limited ; for it was clearly contemplated that the ship might be
destroyed off the bar at Ramsgate, which would be within the jurisdic-
tion. The offence of conspiracy would be committed by any persons
conspiring together to commit an unlawful act to the prejudice or
injury of others, if the conspiracy was in this country, although the
overt acts were abroad. . . . The question is, was it agreed by and
between the prisoner and any other person at Ramsgate that the ship
should be destroyed, whether at sea or in port ?'(?»)

In an indictment for conspiracy the venue should be laid where
the conspiracy was, and not where the result of such conspiracy was
put in execution {q). But there seems to be no reason why the crime
of conspiracy, amounting only to a misdemeanor, may not be tried,
wherever one distinct overt act of conspiracy is in fact committed, as
well as the crime of high treason, in compassing and imagining the
King's death, or in conspiring to levy war (r). So in R. v. Quinn (s),
Fitzgibbon, L.J., said : ' Some one or more of the people who had the
common intention must entertain or manifest it by something done
within the venue, and they are entitled to be tried in any of the
counties where that had taken place.' And in R. v. Bowes (<),
the trial proceeded upon this principle ; and, though no proof of actual
conspiracy, embracing all the several conspirators in Middlesex, where
the trial took place, was attempted to be given, and though the individual
acts of some of the conspirators were wholly confined to other counties
than Middlesex, yet the conspiracy as against all having been proved,
from the community of criminal purpose, and by their joint co-operation
in forwarding the objects of it, in different places and counties, the locality
required for the purpose of trial was held to be satisfied by overt acts,

(o) Vide 8 St. Tr.'(N. S.) 887. In this case the conspiracy was on the high

(p) See R. V. Boulton, 12 Cox, 87, aa to seas or in^Shetland, to fabricate vouchers

putting in evidence acts done outside the for stores, which in pursuance of the con-

jurisdictiou. spiraoy were transmitted to Middlesex, and

(}) R. V. Best [1705], 1 Salk. 174 ; 2 Ld. there deUvered with fraudulent intent.

Raym. 1167 ; 6 Mod. 186. (s) [1898] 19 Cox, 78 (Ir.).

(r) R. V. Brisac, 4 East, 164, ante, p. 53. (t) Cited in R. v. Brisac, 4 East, 164, 171.

180 Of Criminal Conspiracy. [book i.

done by some of them, in prosecution of the conspiracy in the county
where the trial was had.

By the Quarter Sessions Act, 1842 (5 & 6 Vict. c. 38), s. 1, ' neither
the justices of the peace acting in and for any county, riding, division,
or liberty, nor the recorder of any borough, shall, at any session of the
peace, or at any adjournment thereof, try any person or persons, for
{inter alia) unlawful combinations and conspiracies, except conspiracies
or combinations to commit any offence which such justices or recorder
respectively have or has jurisdiction to try when committed by one
person ' (w).

To a count alleging that the prisoners conspired, by divers false pre-
tences, against the form of the statute in that case made and provided, to
defraud the prosecutor of his money it was objected that the facts ought to
have been set out so as to shew that the offence intended to be committed
was within the jurisdiction of the sessions, by whom the indictment had
been tried. It was held (after verdict) that the jury must be taken to
have found the accused guilty of conspiracy to defraud by such false
pretences as were cognisable by a Court of Quarter Sessions {v).

In E. V. King (w) the Court refused to change the venue in an indictment
for a conspiracy to destroy foxes and other vermin, on the ground that
the persons who were likely to serve on the jury to try the indictment
were much addicted to fox-hunting.

Indictment. — Indictments for conspiracy are subject to the provisions
of the Vexatious Indictments Act, 1859 (22 & 23 Vict. c. 17), as amended in
1867 (30 & 31 Vict. c. 35) {ww). The technical averment of the agreement
and conspiracy, generally used in the indictment, charges that the defend-
ants ' did conspire, combine, confederate, and agree together ' ; but it
is said that other words of the same iraport seem to be equally proper (x).
To the counts for a conspiracy may be joined counts for such other
misdemeanors as the circumstances of the case may seem to require («/).

But the Court may, if the joinder embarrasses the defendants, sever
the trials of the counts or of the defendants (2), or put the prosecution
to election which count they will proceed. Thus, where an indictment
contained counts for a conspiracy and counts for libel, and there was
no evidence to affect one of the two defendants as to the Ubel ;
Coleridge, J., at the close of the case for the prosecution, put the
prosecutor to elect upon which charge he would proceed (a).

In R. V. Warren {b), an indictment for a long firm conspiracy con-
tained, besides a general count for conspiracy between all the defendants,
a series of counts charging other conspiracies between two or more of
the defendants. Bosanquet, Common Serjeant, quashed the several
counts, being of opinion that it was unfair to the defendants, and embar-

(u) In R. V. Rispal, 3 Burr. 1320 j (x) 3 Chit. Cr. L. 1143. See R. v. Hamp,

1 .W. Bl. 368, conspiracy was described ante, p. 164.

as a trespass against the peace indictable (y) See R. v. Johnson, 3 M. & S. 550,

at quarter sessions. Cf. R. v. Edwards Ellenborough, C.J.

[1724], 8 Mod. 320; 2 Str. 707; 2 ^Sess. (2) R. v. Aheame [1852], 2 Ir. C. L.

Cas. 836. Rep. 381.

(«) Latham v. R., 5 B. & S. 635. (a) R. v. Murphy, 8 C. & P. 297.

(w) 2 Chit. {K.B.) 217. (6) 71 J. P. Rep. 566 ; 147 Cent. Cr. Ct,

(ww) Post, Bk. xii. c. i. Sess. Pap. 1023.

CHAP. VI.] Form of the Indictment. 181

rassing to the Court and jury, to throw different crimes upon the accused
separately, after giving evidence of a general conspiracy between them
all. In R. V. Ferryman (c), A. T. Lawrence, J., explained this ruling
as meaning that, where separate and independent conspiracies were
charged, they should not be included in one indictment, but that it did
not preclude the inclusion in one indictment in oases where a conspiracy
was formed, and other persons later came in and joined in an existing
conspiracy.

Though it is usual first to state the conspiracy, and then to aver
that in pursuance of it certain overt acts were done, it is sufficient to
state the conspiring alone (d). Where the conspiracy is to commit a
criminal offence it is not necessary to state the means by which the
object was to be effected, as the conspiracy may be complete before the
means to be used are taken into consideration. Thus in R. v. Gill (e),
an indictment for conspiring by divers false pretences and subtle means
and devices to get money from J. S., and cheat him thereof, is not objec-
tionable on the ground that it is too general, or does not sufficiently
show the corpus delicti, or specify any overt act. So a count alleging
that the defendants ' unlawfully, fraudulently, and deceitfully did
combine, conspire, confederate, and agree together by divers false pre-
tences and subtle means and devices to obtain and acquire to themselves
from one G. W. F. divers large sums of money of the monies of the said
Gr. W. F., and to cheat and defraud him thereof,' has been held good (/).
So R. V. Gompertz (g), where a count alleged that the defendants unlaw-
fully, falsely, fraudulently, and deceitfully did conspire, combine, con-
federate, and agree together, by divers false pretences and indirect
means, to cheat and defraud the prosecutor of his monies, the Court of
Queen's Bench held that this count was good, on the aiithority of R. v.
Gill (supra), and in Sydserff v. R. (h). So where a count alleged that
the defendants ' unlawfully, fraudulently, and deceitfully did conspire,
combine, confederate, and agree together to cheat and defraud ' the
prosecutor ' of his goods and chattels ; ' upon error in the Exchequer
Chamber it was held that this case was not distinguishable from R. v.
Gill, and that the count was good (h).

Where the alleged conspiracy is to effect objects made unlawful by
statute it is sufficient to follow the terms of the statute. But as a general
rule where the conspiracy is not to commit an offence, but to do an unlaw-
ful act or a lawful act by unlawful means the indictment must, it is said,
allege the doing of the unlawful act or the use of the unlawful means, or
it will be insufficient (i).

A count alleged that C. C. died possessed of certain East India stock,
and that the defendants conspired, &c., by divers false, fraudulent,
and unlawful ways, means, and contrivances, and by false pretences

L. J. (Newsp.) 683. case that R. v. Biers, 1 A. & B. 327, has

{d) R. V. Best, 2 Ld. Raym. 1167 ; 1 Salk. never been considered as overruling R. v.

174: ; 3 Chit. Cr. L. 1 143. Poulterers' case, GiU. R. v. Biers was also discussed in

9 Co. Rep. 55. R. v. Kimberly, 1 Lev. 62. Sydserff w. R., 11 Q.B. 245.

R. V. Starling, 1 Lev. 125. {h) 11 Q.B. 245. Cf. R. v. Seward, 1 A.

(e) 2 B. & Aid. 204. & E. 706.

(/) R. V. Kem-iok, 5 Q.B. 49. (i) R. v. Rowlands, 17 Q.B. 671.

182 Of Criminal Consfiracy. [book i.

and false swearing, unlawfully, &c., to obtain the means and power
to and for S. P. of transferring and disposing of the said stock ; and that
in pursuance of the said conspiracy the defendants afterwards caused a
certain false deposition, purporting to have been made on oath by S. P.
as one of the lawful children of the said C. C, wherein S. P. falsely stated
that the widow of the said S. P. died without having taken upon her
letters of administration of his goods, to be exhibited in the Prerogative
Court of Canterbury ; and did then fraudulently procure letters of admin-
istration to be issued of the goods of C. C. to S. P., as one of the lawful
children of C. C. After alleging two other overt acts of a similar kind,
the count alleged that the defendants presented such letters of adminis-
tration to the East India Company, and did, by such false ways, &c., false
pretences and false swearing, fraudulently obtain the means and power
to and for S. P. of transferring and disposing of the stock ; and that
S. P. did transfer and dispose of the said stock, &c., with intent to de-
fraud the widow of C. C. It was objected (1) that the conspiracy as
alleged did not amount to any offence, as no legal meaning could be
ascribed to obtaining ' the means and power ' of doing an act : (2)
that the person intended to be defrauded ought to have been shewn
with more certainty : (3) that it ought to have been stated to whom
the stock belonged. But the Court held that the statement of the
means used for effecting the object of the conspiracy was so interwoven
with the charge of conspiracy as to shew on the face of the count an
unlawful conspiracy. But if that were not so, the overt acts shewed
an indictable misdemeanor (/).

Where the indictment is for conspiring to obtain property by ' false
pretences ' these words are not construed in the technical sense in which
they are used in indictments for obtaining by false pretences {h), nor
is it necessary under such a count to prove a statutory false pretence {]),
that the prosecutor was innocent of the crime imputed to him by the
conspirators (m). Where the conspiracy is to accuse falsely of crime, the
indictment need not aver the innocence of the prosecutor, the principle
being that innocence must be intended until the contrary appears (n) . In a
case of a conspiracy to charge a person with being the father of a bastard
child, it was held unnecessary to aver that the prosecutor was not the father.
The words of the indictment were ' did falsely conspire falsely to charge,'
&c. ; but even without those words the indictment was held suf&cient, it
being deemed unnecessary to state that the charge was false, or that the
child was likely to become chargeable, &c. (o). And an indictment for a

(j) Wright V. R., 14 Q.B. 148, affirmed spired by false, &o., and unlawful pretences,

ibid. 180, on the authority of Sydserff v. R., &c., to obtain and get into their possession

supra. The indictment contained several of and from one S. B. divers large sums of

other counts, varying the intent to defraud, money with intent to defraud S. B. The

and omitting some of the overt acts. The Court of Queen's Bench arrested the judg-

seventh count alleged that H. M. C. was ment on these counts,

entitled to the stock, and that the defend- (it) R. v. Hudson, Boll, 263, ante, p. 167.

ants conspired by false, &c., and unlawful \l) R. o. Whitehouse, 6 Cox, 38, Piatt, B.

ways and means, and by false pretences, (m) R. v. Kinnersley, 1 Str. 193.

unlawfully to obtain the means and power (n) R. v. Best, 1 Salk. 174 ; 2 Ld. Raym.

to and for S. P. of transferring and dispo- 1167.

sing of the said stock. The eleventh count (o) R. v. Best, 2 Ld. Raym. 1167.
stated that the defendants unlawfully con-

CHAP. VI.] Form of Indictment. 183

conspiracy was held good, although it was not alleged in the charge itself
that the defendants conspired falsely to indict the prosecutor, and although
it did not appear of what particular crime or offence they conspired to indict
him, but only in general that the defendants did wickedly and maliciously
conspire to indict and prosecute the prosecutor for a capital crimev(y)).

Where the act conspired to be done is in itself illegal (i.e., either
wrongful or criminal), it is not- necessary to state the means by which
the conspiracy was effected. Thus where an indictment charged that
the defendants conspired together by indirect means to prevent one
H. B. from exercising the trade of a tailor, and it was contended that
it should have stated the fact on which the conspiracy was founded, —
the means used for the purpose ; Lord Mansfield, C. J., said : ' The con-
spiracy is stated and its object ; it is not necessary that any means should
be stated;' and BuUer, J., said: 'If there be any objection it is that
the indictment states too much ; it would have been good certainly
if it had not added " by indirect means," and that will not make it bad ' (q).
And where an indictment charged that the defendants conspired, by
divers false pretences and subtle means and devices, to obtain from A.
divers large sums of money, and to cheat and defraud him thereof ;
it was held that the gist of the offence being the conspiracy, it was quite
sufficient to state that fact, and its object, and not necessary to set out
the specific pretences. Bayley, J., said : ' That when parties had once
agreed to cheat a particular person of his monies, although they might
not then have fixed on any means for that purpose, the offence of con-
spiracy was complete ' (r). But where the act only becomes illegal from
the means used to effect it, the illegality of it should be explained
by proper statements, as in the cases which have been cited of
conspiracies to marry paupers (s).

In the indictment in O'Connell v. R. (t), the sixth count alleged that the
defendants unlawfully and seditiously intending, by means of intimida-
tion and the demonstration of great physical force, to procure and effect
changes to be made in the government, laws, and constitution, unlawfully
and seditiously did conspire, &c., to cause, and procure, &c., divers subjects
of the Queen to meet and assemble together in large numbers, at various
times and at different places in Ireland, for the unlawful and seditious
purpose of obtaining, by means of intimidation to be thereby caused,
and by means of the exhibition and demonstration of great physical
force at such assembHes and meetings, changes in the government, laws,

ip) R. V. Spragg, 2 Burr. 993. Of this case, racy actually carried into execution ; and

Tindal, C. J., in R. v. King, 7 Q.B. 782, said : this he holds to be clearly aufScient, and no

' The point decided in that case appears to doubt it was so ; for, rejecting the aver-

have been merely this, that, in an indict- ment of the unexecuted conspiracy, thj

ment for a conspiracy, though the conspi- indictment undoubtedly contained a com-

racy be insufficiently charged, yet if the plete description of a common-law misdc-

rest of the indictment contains a good meanor.'

charge of a misdemeanor, the indictment is (q) R. v. Eccles, 13 East, 230n.

good. Lord Mansfield distinguishes be- (r) R. v. Gill, 2 B. & Aid. 204. In R. v.

tween the allegation of the unexecuted Parker, 3 Q.B. 292, Williams, J., said : ' It

conspiracy to prefer an indictment, aa to has been always thought that in R. v. Gill

the sufficiency of which he gave no opinion, the extreme of laxity was allowed.'
and that of the actual preferring of the in- («) Ante, p. 156, and see R. v. Steward,

dictfflent maliciously and without probable 1 A. & E. 706.
cause, which he calls a completed conspi- (J) 11 CI. & F. 155 ; 5 St. Tr. (N. S.^ 1.

184 Of Criminal Conspiracy. [book i.

and constitution, &c. The seventh count was like the sixth, with the
addition, ' and especially, by the means aforesaid, to bring about and
accomplish a dissolution of the legislative union now subsisting between
Great Britain and Ireland.' Tindal, L.J., in giving to the House of Lords
the opinions of the consulted judges, said : ' With respect, however, to
the sixth and seventh counts, we all concur in opinion that they do not
state the illegal purpose and design of the agreement entered into between
the defendants with such proper and sufficient certainty as to lead to the
necessary conclusion that it was an agreement to do an act in violation of
the law. Each of those two counts does in substance state the agree-
ment of defendants to have been " to cause and procure divers subjects
to meet together in large numbers, for the unlawful and seditious purpose
of obtaining, by means of the intimidation to be thereby caused, and by
means of the exhibition and demonstration of great physical force at
such meetings, changes in the government, laws, and constitution of the
realm." Now, though it may be inferred from this statement, that the
object of the defendants was probably illegal, yet it does not appear to
us to be so alleged with sufficient certainty. The word " intimidation " is
not a technical word ; it is not vocabulum artis, having a necessary
meaning in a bad sense ; it is a word in common use, employed on this
occasion in its popular sense ; and in order to give it any force, it ought
at least to appear from the context what species of fear was intended,
or upon whom such fear was intended to operate. But these counts
contain no intimation whatever upon what persons this intimidation was
intended to operate ; it is left in complete uncertainty whether the
intimidation was directed against the peaceable inhabitants of the sur-
rounding places, against the subjects of the Queen dwelling in Ireland
in general, against persons in the exercise of public authority there, or
even against the legislature of the realm. Again, the mere allegation
that these changes were to be obtained by the exhibition and demonstra-
tion of physical force, without any allegation that such force was to be
used, or threatened to be used, seems to us to mean no more than the mere
display of numbers, and consequently to carry the matter no further.'

In an indictment for conspiring to pervert the course of justice by
producing in evidence a false certificate of a justice of peace, it was held
unnecessary to set forth that the defendants knew at the time of the
conspiracy that the contents of the certificate were false, on the ground
that it is criminal for persons with intent to obstruct the course of justice
to conspire to state a fact as true, which they do not know to be true ;
and that the defendants were bound to have known that the fact was
true which they agreed to certify as such (u).

The question with respect to the sufficiency of an indictment for
conspiracy is whether the counts are framed with sufficient certainty,
with respect to the substance of the charge of conspiracy ; for if
any such counts are framed in so loose, uncertain, or inapt a manner,
that the defendants might have availed themselves of the insufficiency

(«) R. V. Mawbey, 6 T. B. 619. Ante, at the time whether the fact be true or

p. 164. Lawrence, J., said that it waa not false ; which is as much perjury as if he

unlike the case of perjury where a man knew the fact to be false, and equally

swears to a particular fact without knowing indictable. Vide post, p. 476.

CHAP. VI.] Indictment : Particulars. 185

of the indictment upon demurrer, there was nothing to prevent them
from taking the same advantage of the objection by appeal, or case
stated, except where the defect is such as would be cured by verdict {v).

Particularity. — The Court refused to quash on motion an indictment
charging the defendants with conspiring ' to defraud J. W. of divers
goods, and in pursuance of that conspiracy defrauding him of divers
goods, to wit, of the value of £100 ' ; on the ground that the gist of the
indictment was the conspiracy, and that there might be so much uncer-
tainty in the transaction, which was the subject of the indictment, that
the allegation could not be made with greater certainty, as the conspiracy
might be to defraud the prosecutor, not of any particular goods, but of
any goods the prisoner could get hold of (w).

In E.. -y. de Berenger (x), it was held that an indictment which alleged
an intention to injure the subjects who should purchase public funds on
a particular day was good ; for it followed from the nature of the charge
that the persons could not be named, because the charge was of con-
spiracy on a previous day to raise the funds on a future day, so that it was
uncertain who would be the purchasers ; and the offence being to raise
the funds on a future day, its object was to injure all those who should
become purchasers on that day, and not some individuals in particular {x).

So where a count stated that the defendants conspired to defraud
divers of Her Majesty's subjects, who should bargain with the defendants
for the sale of goods of the said subjects without making payment for the
same, with intent to acquire to the said defendants divers sums of money ;
it was held that it was no valid objection that the count did not state
what particular creditors the defendants meant to defraud ; for if the
offence went no further than the conspiracy, it could not be known what
particular persons fell into the snare. But the count was held defective
for not stating with sufficient particularity what the defendants con-
spired to do ; for obtaining goods without making payment was not
necessarily a fraud, as the words of the indictment might apply to the
obtaining .goods to sell on commission {y). The second count alleged
that the defendants being ' indebted to divers persons in large sums of
money,' conspired to defraud the said creditors of the defendants of
payment of their said debts, and in pursuance of the said conspiracy
unlawfully did execute a certain false and fraudulent deed of bargain
and sale and assignment of certain fixtures, stock in trade, and goodwill,
of great value, belonging to the said defendants, from two of themselves
to the third, for divers false and fraudulent considerations, with intent
thereby to procure to the said defendants divers sums of money and
other emoluments. This count was held bad because it did not state
in what respect the deed was false and fraudulent, and therefore the

(v) O'Coimell v. R;, 11 CI. & P. 155, per ticular goods were not specified, and

Tindal, O.J., 5 St. Tr. (N. S.) 1. The law probably only so much as shewed that was

lords concurred in this opinion. Writs of stated in the report. In an indictment for

error, referred to in that case, are abolished larceny the goods stolen must be specified,

in England. See post, Bk. xii. c. ii. ' Plead- post. Vol. ii. p. 1296.

ing ' : c. iv. • Appeal' (x) 3 M. & S. 68, ante, p. 170.

(w) Anon. [1819], 1 Chit. (K.B.) 698. In (y) R. v. Peck, 9 A. & E. 686. Peck v.

R. V. Parker, post, p. 186, it was said that R., 8 L. J. M. C. 22.
the objection in this case was that the par-

186 Of Criminal Conspiracy. [book i.

Court had only the prosecutor's general opinion upon this point, not the
facts on which it was founded (z).

An indictment alleged that an issue in an action between H. B. and
G. C. was tried, and that the plaintiff recovered a verdict for £17, and
that the judge certified that execution ought to issue forthwith, and that
the defendants ' did conspire falsely and fraudulently to cheat and
defraud the said H. B. of the fruits and advantages of the said verdict
and certificate.' Denman, C.J., held the indictment bad, as the
allegation was too general, and did not convey any specific idea which
the mind could lay hold of, to determine whether any unlawful act had
been done or attempted, and because the terms used did not import in
what manner the plaintiff was to be deprived of the fruits and advantages
of his verdict, and it was not even alleged that the verdict would lead to
any fruits and advantages (a). Where a count for conspiracy is framed
in a general form in accordance with the rule in R. v. Gill, the Court may
make an order for particulars giving such information as would be given
in a special count, even though the details are contained in the depositions
taken at the preliminary inquiry (h).

In the British Bank case an order had been made on the first day of
the trial that particulars of Cameron's debt, which was stated to be
£36,000, should be delivered to him ; and it was objected that until the
particulars had 'been given that case could not be gone into. It was
answered that Cameron had had access to the accounts for some months :
and Campbell, C.J., ruled that the Crown could not be precluded from
giving evidence on that part of the case (c).

Where an indictment charged a conspiracy between the defendants
and divers other persons, not adding ' to the jurors unknown,' the
prosecution were ordered to give the names of such persons (d).

The particulars need not state the specific acts the defendants are
charged with having done, or the times or places at which such acts are
alleged to have taken place. But where a count alleges overt acts, the
Court will not order particulars to be delivered, where there is no affidavit
on the part of the defendant that he has no knowledge of the overt acts
charged, and does not possess sufficient information to enable him to
meet them. The particulars may be ordered to be given forthwith,
so as to avoid the necessity of adjourning the trial (e).

In E. V. Parker (/), the first count alleged that the defendants,
intending to cheat and defraud divers of the subjects of the Queen of their
goods, &c., unlawfully conspired by divers false pretences to obtain from

(z) R. V. Peck, supra. he refused, then an apphcation might be

(o) R. V. Richardson, 1 M. & Rob. 402. made to postpone the trial in order that

(b) R. V. Hamilton, 7 G. & P. 448, Little- the question might be more maturely dis-

dale, J., after consulting several of the other cussed. From which it is to be inferred

judges. R. V. Ryoroft, 6 Cox, 76, Williams, that the motion had been made without

J. R. V. Probert, Dears. 32 (a) ; Arohb. any previous application for particulars to

Cr. PI. (23rd ed.), 70. ' In Anon. 1 Chit. the prosecutor.' C. S. G.

(K.B.), 698, the Court refused to order such (c) R. v. Stapylton, 8 Cox, 69.

particulars to be given on motion, but inti- {d) R. v. Esdaile, 1 F. & F. 213.

mated that the correct course was to apply (e) R. v. Perrin [1908], 73 J. P. 144 ;

to the prosecutor to give some information 24 T. I>. R. 487, Walton, J.

as to the particulars upon which he meant (/) 3 Q.B. 292; 11 L. J. M. C. 102.

to rely in support of the indictment, and if

CHAP. VI.] Indictment : Particularity. 187

divers of the subjects, &c., then carrying on business in the City of London,
to wit, T. T. and D. L., warehousemen and copartners, and E. F. and
E. F., cotton yarn manufacturers and copartners, &c., divers goods of
great value, to wit, &c., and to cheat and defraud the said liege subjects
of the said goods. The count then set out several overt acts as to
obtaining goods from the parties above named, and concluded by averring
that the defendants did by the means aforesaid obtain from the said
T. T. and D. L., and B. F. andE. F., &c., the goods aforesaid, and did
cheat and defraud them thereof. The second count was similar, but did
not state the overt acts. The third count stated the conspiracy to be to
cause it to be believed that one of the defendants, who was then an
uncertificated bankrupt, was not B. P., but J. P., and that he carried on
an extensive shipping business, and was a man of large property, and had
a large capital in the business, and by means of the said belief to obtain
from divers liege subjects (not naming them) divers goods, wares, and
merchandise, and to cheat and defraud the said liege subjects of the said
goods, &c. The fourth count charged that the defendants unlawfully
combined by divers false pretences to obtain from divers liege subjects
(not naming them) divers other goods of great value, and to cheat and
defraud the said liege subjects of the said goods, &c.jji The defendants
having been convicted, judgment was arrested on the ground that the
indictment was bad for not stating to whom the goods belonged, it being
consistent with the statements in the indictment that the goods belonged
to the defendants. The Court said that where the object charged was a
conspiracy to obtain from certain persons named divers goods, and to
cheat and defraud them of the same, and they were obtained, and the
parties defrauded, no precedent was to be found to shew that an indict-
ment was good which omitted to state whose the goods were. The first
count, therefore, was imperfect, and the objection apphed more strongly
to the fourth count, where the conspiracy charged was to obtain divers
goods and to cheat and defraud certain persons named, not with intent to
cheat and defraud them of the same, though perhaps that would have
made no difference. As there was no statement to whom the goods
belonged, the charge did not, in the view of the Court, of necessity, import
any offence, as it was consistent with an attempt by the defendants
to obtain by some means their own goods unlawfully detained from
them ; and to hold, that the use of the words ' to cheat and defraud '
necessarily impUed that the goods belonged to the parties who were
stated to be defrauded, would be letting in a generality, which was not
shewn ever to be allowed (g).

ig) See R. v. Bullock, Dears. 653. Al- there the indictment ought to specify pre-

though there appears at first sight to be cisely what has been effected, as the parties

some little discrepancy in the cases upon injured, the property obtained, and to

this point, perhaps they are not irreoon- whom it belonged. The reason of such a

citable. The correct distinction to be distinction is that in the one case it is im-

drawn from them appears to be this, that practicable to state with minuteness what

where there has been merely a conspiracy never was carried beyond the intention,

for a particular purpose {e.g., to raise the whereas in the other case what was actually

funds), and such conspiracy has not been effected may easily be stated. The case

carried into execution, an indictment in may be compared to the cases of burglary

general terms will be sufficient ; but where with intent to steal, and burglary accom-

there has not only been » conspiracy, but panied by an actual stealing ; in the former

such conspiracy has been carried into effect, it is sufficient to state that the prisoner

188 Of Criminal Conspiracy. [book i.

In an indictment for obtaining property by false pretences, it is not
necessary to state to whom the property belongs (h), and it is submitted
that it is not necessary to have greater particularity in indictments for
conspiracy to obtain by false pretences (i).

In E. V. Blake (/), a count alleged that the defendants did unlawfully
combine, conspire, confederate, and agree together to cause and procure
certain goods, in respect whereof certain duties of customs were due and
payable to the Queen, to be taken away from the port of London and
delivered to the respective owners thereof without payment to the Queen
of a great part of the duties of customs payable thereon with intent to
defraud the Queen in her revenue of the customs. A motion was made
to arrest judgment on the ground that the count was insufficient, because
no description of the goods was given, by which it could be judged whether
the goods were liable to duty. But the Court held that it was not neces-
sary to specify the goods ; that it was matter of evidence what the goods
were to which the conspiracy related ; that the parties might have
conspired without knowing what they were ; and that they might have
laid their heads together to cheat the Queen of whatever customable
goods they could pass.

In E. V. King (Jc), a count alleged that W. H. King, E. A. Birch, and
A. D. Phillips, did ' unlawfully combine, conspire, confederate and agree
together to cheat and defraud certain liege subjects of our Lady the
Queen, being tradesmen, of divers large quantities of their goods and
chattels : ' and that B., in pursuance of the said conspiracy, did fraudu-
lently order and obtain upon credit from W. A. W. and C. W. divers
goods, &c., belonging to the said W. A. W. and C. W. ; from F. B. and
W. J., divers goods, &c., belonging to the said F. B. and W. J. ; and
from divers other tradesmen whose names are to the jurors unknown,
divers other goods, &c., belonging to the said last mentioned persons ;
and that E. A. B., '' in further pursuance of the said conspiracy,' and in

broke and entered the house with intent to conspired to obtain their own goods from

steal the goods (without describing them) another, and thereby to cheat and defraud

of one A. B. ; and in the latter the goods him, under such circumstances as did not

stolen must be particularised. So where a amount to larceny, should not be indictable

conspiracy has been detected before it is for a conspiracy. The better ground to

carried into execution so far as to ascertain rest the decision upon would seem to be

the parties intended to be injured by it, an that the indictment did not adopt such a

indictment would be good without naming degree of particularity as the facts enabled

such parties. R. «.deBerenger, are(e,p. 170. the prosecutor to do, and the rules of

But where the conspiracy had proceeded criminal pleading require to be adopted

so far as to fix the parties intended to be where it is practicable. C. S. G.

injured, such parties should be expressly {h) 24 & 25 Vict. c. 96, s. 88, post, Vol. ii.

named, and if the object was to defraud p. 1514.

them of iAeir goods, or their goods had been (i) But in White v. B., 13 Cox, 318,

actually obtained thereby, the indictment C. 0. R. (Ir.), the contrary seems to have

should state in the one case the intent to been held.

defraud them of their goods, and in the {j) 6 Q.B. 126. Of. R. v. Rispal, 3 Burr.

other that they were defrauded of their 1320. AU the reasoning in the judgment

goods. This position has been fully borne of the Exchequer Chamber in R. v. King,

out by R. V. King, infra. It may, perhaps, infra, tends to shew that this decision was

admit of some doubt whether the possibihty wrong, as the goods had been imported and

of the goods belonging to the defendants clearly ascertained. The terms ' a great

in the principal case necessarily rendered part of the duties of customs ' seem very

the indictment bad ; for as a party may be objectionable,

guilty of larceny in stealing his own goods, \h) 7 Q.B. 782.
there seems no reason why parties who

CHAP. VI.] Indictment : Grenerality. 189

order that the said goods might be taken in execution as hereinafter
mentioned, did order the said goods to be deUvered at her house ; and that
the said goods were so delivered, and no payment made for the said goods
by any of the defendants at any time ; and that, ' in further pursuance
of the said conspiracy,' the said E. A. B. did procure the said goods to
remain in her house until they were taken in execution as hereinafter
mentioned, and that the defendants, ' in further pursuance of the said
conspiracy,' did falsely and fraudulently pretend that certain debts
were due from the said E. A. B. to the said W. H. K. and A. D. P. respec-
tively, and that the said W. H. K. and A. D. P., ' in further pursuance
of the said conspiracy, and in order to obtain payment of such false and
fictitious debts,' did commence by collusion with the said E. A. B. separate
actions against the said E. A. B. And that afterwards, ' in further
pursuance of the said conspiracy,' judgments were coUusively signed by
the said W. A. K. and A. D. P. in each of the said actions for want of a
plea. And that afterwards, ' in further pursuance of the said conspiracy,
writs of fieri facias were collusively sued out upon the said judgments ;
by virtue of which writs the said goods were, before the expiration
of the said respective times of credit, taken in execution and sold
in due course of law to satisfy the fictitious debts falsely and fraudulently
alleged to be due from the said E. A. B. And so the jurors aforesaid
find that the defendants, in manner and by the means aforesaid, unlaw-
fully did cheat and defraud the said W. A. W. and C. W., F. B. and W. J.,
&c., of their said goods ' (Z). A conviction on this indictment was quashed
in the Exchequer Chamber. Tindal, C.J., in deUvering the judgment
of the Court, said : ' The charge is that the defendants conspired to cheat
and defraud divers liege subjects, being tradesmen, of their goods, &c. ;
and the objection is that these persons should have been designated by
their Christian and surnames, or An excuse given, such as that their names
are to the jurors unknown ; because this allegation imports that the
intention of the conspirators was to cheat certain definite individuals,
who must always be described by name, or a reason given why they are
not ; and if the conspiracy was to cheat indefinite individuals, as for
instance those whom they should afterwards deal with, or afterwards
fix upon, it ought to have been described in appropriate terms, shewing
that the objects of the conspiracy were, at the time of making it, unascer-
tained, as was in fact done in the case of E. v. de Berenger (m), and E. v.
Peck {n) ; and it was argued that if, on the trial of this indictment, it
had appeared that the intention was not to cheat certain definite indi-
viduals, but such as the conspirators should afterwards trade with or
select, they would have been entitled to an acquittal ; and we all agree
in this view of the case, and think that the reasons assigned against the
validity of this part of the indictment are correct. But then it was
urged on the part of the Crown that this defect in the allegation of the
conspiracy was cured by referring to the whole of the indictment, the
part stating the overt acts as well as that stating the conspiracy ; and
E. V. Spragg (o) was cited as an authority that the whole ought to be

(I) The indictment is set out in R. v. (n) 9 A. & E. 686, ante, p. 185.

Whitehouse, 6 Cox, 46n. (o) 2 Burr. 993. See ante, p. 183, note

(to) 3 M. & S. 67, ante, p. 170. (p), for the remarks on this case.

190 Of Criminal Conspiracy. [BOOK l.

read together. But if we examine the allegations in this indictment,
there is no sufficient description of any act done after the conspiracy
which amounts to a misdemeanor at common law. None of the overt
acts are shewn by proper averments to be indictable. The obtaining
goods, for instance, from certain named individuals upon credit, without
any averment of the use of false tokens, is not an indictable misdemeanor ;
and if it is said that because it is averred to have been done in pursuance
of the conspiracy before mentioned, it must be taken to be equivalent to
an averment that the conspiracy was to cheat the named individuals of
their goods, the answer is, first, that it does not necessarily follow, because
the goods were obtained in pursuance of the conspiracy to cheat some
persons, that the conspiracy was to cheat the persons from whom the
goods were obtained ; they might have been obtained from A. in the
execution of an ulterior purpose to cheat B. of his goods. And secondly,
if the averment is to be taken to be equivalent to one that the goods
were obtained from the named individuals in pursuance of an illegal
conspiracy to cheat and defraud those named individuals of their goods,
it would still be defective, as not containing a direct and positive averment
tliat the defendants did conspire to cheat and defraud those persons,
which an indictment for a conspiracy, where the conspiracy is itself the
crime, ought certainly to contain. The other allegations of what are
termed overt acts are open to the same objection. In none is there com-
plete description of a common-law misdemeanor independently of the
conspiracy ; and the allegation of the conspiracy is insufficient, and
not direct and positive. For these reasons the judgment must be
reversed '(p).

In K. V. Button (q), a count charged that the defendants were em-
ployed by L. as his servants in the management of the business as a dyer,
and that it was their duty as such servants to employ the vats and dye
of L. for his benefit and for dyeing such materials as might belong to
themselves or be intrusted to them by L. for those purposes, and for no
other purposes and on no other materials ; and that the defendants un-
lawfully conspired, fraudulently, and without the consent of L., to employ
the vats and dye in dyeing materials not belonging to themselves and
not intrusted to them by L., and to obtain thereby to themselves large
profits, and to deprive L. of the use and benefit of the said vats and dye ;
and that the defendants, in pursuance of the said conspiracy, wilfully
and without the consent of L., received into their possession divers large
quantities of materials, and wilfully and without the consent of L., at his
expense and with his said vats and dye, dyed the same materials for their
own profit and benefit. It was objected that the count did not shew
that the goods which the defendants dyed were not their own, and that
it appeared by the record that they had permission to dye their own
goods ; but the count was held good on the ground that it was clear that
the essential part of the count was the charge of a conspiracy ; so that

{p) In the argument in the Court of held that this was not necessary, and this

Queen's Bench in this case it was alao ob- point does not appear to have been raised

jeoted that the conspiracy ought to have in the Exchequer Chamber,

been laid to defraud divers tradesmen of (}) 11 Q.B. 929.
their goods ' respectively,' but the Court

CHAP. VI.] Evidence. 191

if the evidence proved the conspiracy the count would have been suffi-
ciently proved, even if there was no proof of the overt acts, i.e., that the
conspiracy was carried into effect (r).

Evidence. — The existence of a conspiracy is in most cases ' a matter
of inference deduced from criminal (or unlawful) acts done in pursuance
of a common criminal purpose ' (s).

The evidence in support of an indictment for a conspiracy is generally
circumstantial ; and it is not necessary to prove any direct concert,
or even any meeting of the conspirators, as the actual fact of conspiracy
may be collected from the collateral circumstances of the case (t).
Although the common design is the root of the charge, it is not necessary
to prove that the defendants came together, and actually agreed in
terms to have the common design, and to pursue it by common means,
and so to carry it into execution, for in many cases of the most clearly
established conspiracies there are no means of proving any such thing (v).
If, therefore, two persons pursue by their acts the same object, often
by the same means, one performing one part of an act, and the other
another part of the same act, so as to complete it, with a view to the
attainment of the common object they were pursuing, the jury are free to
infer that they have been engaged in a conspiracy to effect that object (w).
It is not necessary to prove the existence of a conspiracy before giving
in evidence of the acts of the alleged conspirators, and isolated acts
may be proved as steps by which the conspiracy itself may be estab-
lished (a;). In E. v. Duffield {y), Erie, J., directed the jury that it does
not happen once in a thousand times when the offence of conspiracy is

(r) There was another count similar to The allegation that the defendants did ob-

the above, which was objected to on the tain the money from W. A. ' in pursuance

ground that it did not allege any duty in of the conspiracy ' is the regular mode of

the defendants not to employ the dye for connecting the overt act with the con-

their own profit ; but the Court held it spiracy, especially where, as in this case,

good, as the allegation of the conspiracy the overt act could not be foreseen at the

was sufficient. There was also a question time when the conspiracy was entered into,

as to the conspiracy having merged in the The overt act, therefore, was well laid,

felony decided in this case. But as 14 & But even if it had been otherwise, the count

15 Vict. c. 100, s. 12, has got rid of aU such was good without it ; for the conspiracy

questions it has been omitted. In R. ■;;. was clearly well laid ; and where that is

Ward, 1 Cox, 101, a count alleged that the the case, an acquittal of the overt act is

defendants, having in their possession two immaterial. R. v. Starling, 1 Lev. 125,

horses, conspired by divers false pretences shews that the overt act is in such a case

to obtain large sums of money from such immaterial.

persons as might be desirous of purchasing (s) R. v. Brisac, 4 East, 164, 171, ante,

the said horses, and to cheat and defraud p. 53, approved by the consulted judges in

such persons of such sums of money, and Mulcahy v. R., L. R. 3 H. L. 306, 317. See

that the defendants, in pursuance of the Taylor, Evidence (10th ed.), s. 591.

said conspiracy, made certain false pre- (<) R. v. Parsons, 1 W. Bl. 392.

tences, which were set out ; and that the (u) R. v. Murphy, 8 C. & P. 297, Coleridge,

defendants, in pursuance of the said con- J. R. v. Brittain, 3 Cox, 76, Coltman, J.

spiracy, did obtain from W. A. an order for See the case mentioned in R. v. Pamell,

the payment of £115 10s. If was objected 14 Cox, 505, where two Irish Americans

that this count was bad, because it did not who had fought on different sides in the

shew that W. A. was one of the persons American Civil War and had never met

who was desirous of purchasing the horses, were indicted for participation in the Fenian

and therefore he was not shewn to be within conspiracy, a treason felony,

the objects of the conspiracy. The count {w) R. v. Murphy, supra, Coleridge, J.

is said to have been held bad. If correctly (a:) Ford v. Elliott, 4 Ex. 78, Alderson, B.

reported this ruling is clearly erroneous. (y) 5 Cox, 404.

192 Of Criminal Conspiracy. [book t.

tried that anybody comes before tbe jury to say that he was present at
the time when the parties did conspire together, and when they agreed
to carry out their unlawful purposes ; that species of evidence is hardly
ever to be adduced before a jury ; but the unlawful conspiracy is to be
inferred from the conduct of the parties ; and if several men are seen
taking several steps, all tending towards one obvious purpose, and they
are seen through a continued. portion of time taking steps that lead to
one end, it is for the jury to say whether those persons had not combined
together to bring about that end, which their conduct appears so obviously
adapted to effectuate. In R. v. Cope (z), a husband and wife, and their
servants, were indicted for conspiring to ruin the trade of the King's
card-maker. The evidence against them was, that they had at several
times given money to his apprentices to put grease into the paste, which
had spoiled the cards ; but there was no account given that ever more
than one at a time was present, though it was proved they had all
given money in their turns ; it was objected that this could not be a
conspiracy, on the ground that several persons might do the same thing,
without having any previous communication with each other. But it
was ruled that the defendants being all of a family, and concerned in
making of cards, it would amount to evidence of a conspiracy. And it
seems to have been ruled that a banker who permitted a sum of money
to be lodged at his house, to be paid over for corruptly procuring an
appointment under government, might be indicted for conspiring with
those who were to procure the appointment, and receive the money (a).

The following rule has been suggested with respect to the acts or
words of one conspirator being evidence against the others. Where
several persons are proved to have combined together for the same
illegal purpose, any act done by one of the party, in pursuance of the
original concerted plan, and with reference to the common object, is in
the contemplation of law the act of the whole party, and therefore, the
proof of such act would be evidence against any of the others who were
engaged in the same conspiracy ; and declarations, made by one of the
party at the time of doing such illegal act, seem not only to be evidence
against himself, as tending to determine the quality of the act, but
against the rest of the party, who are as much responsible as if they had
themselves done the act. But what one of the party may have been
heard to say at some other time, as to the share which some of the others
had in the execution of the common design, or as to the object of the
conspiracy, is not admissible as evidence to affect them on their trial
for the same offence (6). And, in general, enough must be proved to
make a case for the Court, or proof of concert and connection must be
given, before evidence is admissible of the acts or declarations of any
person done or made in the absence of the prisoner (c). It is for the
Court to judge whether such connection has been sufficiently established ;

(z) 1 Str. 144. Caroline's case, 2 B. & B. 302. E. v.

{a) R. V. PoUman, 2 Camp. 233. Jacobs, 1 Cox, 173. R. v. Duffield, 5 Cox,

(6)1 PhiU. Evid. (7th ed.), 94, 95; 404. See R. jj. Gumey, 11 Cox, 414, where

9th ed. 201. Taylor, Evidence (10th ed.), defendants were indicted for a conspiracy

s. 590. to cheat and defraud by means of a false

CHAP. VI.] Evidence. 193

but when that has been done, the doctrine applies that each party is
an agent for the others, and that an act done by one in furtherance of
the unlawful design, is in law the act of all, and that a declaration made
by one of the parties, at the time of doing such an act, is evidence against
the others. Thus, where S. was indicted for treason, and one of the
overt acts charged was conspiring with J. and others to collect intelli-
gence, and to communicate it to the King's enemies in France, &c.,
after evidence had been given to connect the prisoner with J. in the
conspiracy as charged, the Secretary of State for the Foreign department
was called to prove that a letter of J.'s, containing treasonable inform-
ation, had been transmitted to him from abroad, but in a confidential
way, which made it impossible for him to divulge by whom it was
communicated ; and such letter was received in evidence {d). So, after
evidence had been given of a treasonable conspiracy, in which the prisoner
was concerned, it was held that papers found in the lodging of a co-
conspirator, at a period subsequent to the apprehension of the prisoner,
might be read in evidence, upon strong presumptive proof being given
that the lodgings had not been entered by any one in the interval between
the apprehension of the prisoner and the finding of the papers,
although no absolute proof had been given of their existence previous
to the prisoner's apprehension (e). But it seems that if such papers
had not been proved to have been intimately and immediately connected
with the objects of the conspiracy, they would not have been admis-
sible ; as, in the same case, a paper contaiaiag seditious questions
and answers, found in the possession of a co-conspirator, was
not read in evidence, the court doubting whether it was sufficiently
connected by evidence with the object of the conspiracy to render it
admissible (/).

Every person concerned in any of the criminal parts of the transaction
alleged as a conspiracy may be found guilty, though there is no evidence
that such persons joined in concerting the plan, or that they ever met
the others, and though it is probable they never did, and though some
of them only join in the latter parts of the transaction, and probably
did not know, of the matter until some of the prior parts of the transaction
were complete (g). If several persons meet from different motives, and
then join in effecting one common and illegal object, it is a conspiracy.
Where, therefore, upon an information for a conspiracy to ruin M., an
actor, in his profession, it was objected that in support of the prosecution
evidence should be given of a previous meeting of the parties accused
for the purpose of confederating to carry their object into execution ;
Sir James Mansfield, C.J., overruled the objection, saying that if a
number of persons met together for different purposes, and afterwards
joined to execute one common purpose to the injury of the person,
property, profession, or character of a third party, it was a conspiracy,

(d) R. V. Stone, 6 T. R. 527. strument was to be used for the purposes of

(e) R. V. Watson, 2 Stark. (N.P.) 140 ; tlie conspiracy, it would clearly be admis-
32 St. Tr. 1. See R. v. MaoCafferty, 10 sible.

Cox, 603. R. V. Meaney, 10 Cox, 506. {g) R. v. Lord Grey, 9 St. Tr. 127. R. v.

{/ ) R. v. Watson, supra. But it was held Murphy, 8 C. & P. 297, Coleridge, J. R. v.

that if proof were to be given that the in- Pamell, 14 Cox, 508, 515.

VOL. I. O

194 Of Criminal Conspiracy. [book i.

and it was not necessary to prove any previous consultation or plan
among the defendants against the person intended to be injured (h).

It appears to have been held that upon an indictment for a conspiracy,
where, from the nature of the case, it would be difficult to prove the
privity of the parties accused, without first proving the existence of a
conspiracy, the prosecutor may go into general evidence of its nature,
before it is brought home to the defendants. The indictment charged
the defendants, who were journeymen shoemakers, with a conspiracy
to raise their wages ; and evidence was offered on the part of the prose-
cution of a plan for a combination amongst the journeymen shoemakers,
formed and printed several years before, legulating their meetings,
subscriptions, and other matters for their mutual government in for-
warding their designs. This evidence was objected to by counsel for
the defendant ; but Kenyon, C.J., said, that if a general conspiracy
existed, general evidence might be given of its nature, and of the conduct
of its members, so as to implicate men who stood charged with acting
upon the terms of it years after those terms had been established, and
who might reside at a great distance from the place wh^re the general
plan was carried on ; and he, therefore, permitted a person, who was a
member of this society, to prove the printed regulations and rules of the
society, and that he and others acted under them, in execution of the
conspiracy charged upon the defendants, as evidence introductory to
the proof that they were members of such society, and equally concerned ;
but he observed, that it would not be evidence to affect the defendants
until they were made parties to the same conspiracy (i). And in several
important cases, evidence has been first given of a general conspiracy
before any proof of the particular part which the accused parties have
taken (j).

The prosecutor may either prove the conspiracy, which renders
the acts of the conspirators admissible in evidence, or he may prove the
acts of the different persons, and thus prove the conspiracy. Where,
therefore, a party met, which was joined by the prisoner next day, it
was held that directions given by one of the party on the day of their
meeting as to where they were to go and for what purpose, were admis-
sible, and the case was said to fall within R. v. Hunt (3 B. & Aid. 566),
where evidence of drilling at a different place two days before and hissing
an obnoxious person was held receivable (k).

But after such general evidence has been received the parties before
the Court must be affected for their share of it. And mere detached
declarations and confessions of persons not defendants, not made in
the prosecution of the object of the conspiracy, seem not to be evidence
to prove its existence, although consultations for the purpose, and letters

(h) R. V. Leigh or Lee, 1 C. & K. 28n ; going on at Manchester, and in France,

2 Camp. 372n.; 6 M. & G. 217n.; 2 Stark. Scotland, and Ireland, at the same time.
Evid. 324 ; 2 M'Nally, Evid. 634. See R. (j) Lord Stafford's case, 7 St. Tr. 1218.

V. Murphy, 8 0. & P. 297, Coleridge, J. Lord Russell's case, 9 St. Tr. 577. Lord

Vide ante, p. 191. Lovat's case, 18 St. Tr. 530. R. v. Hardy,

(i) R. V. Hammond, 2 Esp. 718. Lord 24 St. Tr. 129. R. v. Home Tooke, 25 St.

Kenyon referred to the state trials in 1745, Tr. 1.

where from the nature of the charge it was (k) R. v. Frost, 9 C. & P. 129, Tindal,

necessary to go into evidence of what was C, j„ Parke, B., and Williams J.

CHAP. VI.] Evidence. 195

written in prosecution of the design, but not sent, are admissible [1).
The admissibility of the act or declaration of a co-conspirator against
the party defendant before the court, does not depend on whether such
co-conspirator is indicted or not, or tried or not with the defendant (m).
The evidence is admitted on the ground that the act or declaration of
one is the act or declaration of both when united in one common
design.

Where the indictment charged the defendants with conspiring to
cause themselves to be believed persons of large property for the pur-
pose of defrauding tradesmen, evidence was given of their having hired
a house in a fashionable street, and represented themselves to one trades-
man employed to furnish it as people of large fortune ; and then a witness
was called to prove that at a different time they had made a similar
representation to another tradesman. The evidence of this witness
was objected to on the ground that it was not competent to the prosecutor
to prove various acts of this kind, and that he was bound to select
and confine himself to one. But EUenborough, C.J., said, ' This is an
indictment for a conspiracy to carry on the business of common cheats,
and cumulative instances are necessary to prove the offence ' (n). And,
in a similar case, the same course was allowed as to acts done both in and
out of the county where the indictment charged the conspiracy to have
been(o).

Upon an indictment for conspiring to annoy a broker who distrained
for church-rates, it was proved that one of the defendants, in the presence
of the other, excited the persons assembled at a public meeting to go in a
body to the broker's house. It was held that evidence was admissible
to shew that they did so go, although neither of the defendants
went with them, but that evidence of what a person, who was at the
meeting, said a few days after the meeting when he himself was dis-
trained on for church-rates, was not admissible {f). And where an
indictment charged the defendant with conspiring with J., who had
been previously convicted of treason, to raise insurrections and riots,
and it was proved that the defendant had been a member of a Chartist
association, and that J. was also a member, and that in the evening
of November 3 the defendant had been at J.'s house, and was heard
to direct the people there assembled to go to the race-course, where
J. had gone on before with others ; it was held that a direction given
by J. in the forenoon of the same day to certain parties to meet on the
race-course was admissible ; and it being further proved that J. and
the persons assembled on the race-course went thence to the New Inn,
it was held that what J. said at the New Inn was admissible, as it was
all part of the same transaction (g).

Where a number of persons were charged with murder committed by
an act done in the course of a conspiracy for the purpose of liberating
a prisoner, of which conspiracy he was cognisant : it was held that acts

(I) Taylor, Evid. (10th ed.) sa. 589, 593. 6 Cox, 38.

(m) 2 Stark. Evid. 329. (p) K. v. Murphy, 8 C. & P. 297, Cole-

(») R. V. Roberts, 1 Camp. 399, ante, ridge, J.
p. 168. (q) R. V. Shellard, 9 C. & P. 277, Pat-

io) R. V. Whitehouse, MSS. C. S. G. and teson, J.

O 2 -H

196 Of Crimnal Conspiracy. [book i.

of that prisoner within the prison, and articles found upon him, were
admissible in evidence against the persons so charged (r).

On an indictment under sect. 3 of the Treason Felony Act, 1848
(11 & 12 Vict. c. 12), which makes it a felony to compass, &c., to deprive
the Queen of her crown or to levy war, &c., it appeared that the prisoners
from July 26 to August 16 had attended meetings where plans for securing
the people's charter and the repeal of the union were organised, and took
a prominent part at those meetings ; large bodies of rnen were formed
into societies, with class leaders, &c. ; some of them were selected and
organised as fighting men, and an attempt at insurrection was to be made
on August 16 ; and on that night a great number of the conspirators
were found at the several places of meeting previously fixed, provided
with arms, &c. A witness stated that at a meeting, at which none of the
prisoners were present, he received a leaf of a book from one B., which
was to serve as an introduction to a subsequent meeting ; and on July 20
he attended a second meeting, and produced the leaf ; the chairman
compared it with a book, and the witness was admitted. The prisoners
were not shewn to have been parties to the conspiracy at the time. But
it was held that the witness might prove what B. said to him when he
gave him the leaf, and also what took place at the second meeting, on
the ground that the prosecution had a right to go into general evidence
of the nature of the combination between the persons assembled, though
the prisoners might not be present (s). And it having been proved
that a large number of armed men were found assembled at a pubUc-
house on August 16, the. time which had been fixed for the general
outbreak, but none of these men had been previously connected with the
conspiracy, nor did it appear that the house had ever been recognised
as a place of meeting ; it was held that evidence was admissible of what
was done at that public-house ; because it appeared that on this day there
was to be a collection of armed persons (t).

In R. V. Dufiield (u), on an indictment for conspiracy to prevent work-
men from continuing in their service as tin-plate workers, it appeared that
the workmen had been holding shop meetings and discussions, and the
prosecutor, a manufacturer, had published a placard offering constant
employment to tin-plate workers, and after that a handbill was circu-
lated about the town, and copies of it stuck up in the windows of
beer-shops and public-houses, and one of them in a window of a
public-house frequented by the tin-plate workers, and another at a public-
house at which one P., G., and W., alleged conspirators, lodged, and the
defendants had been continually into those houses whilst the bill was
in the windows. The bill was signed by P. as general secretary, and
mentioned G. and W. as having visited the prosecutor, but did not
mention any of the defendants. Erie, J., held that the bill was not
admissible as the act of the defendants, either by themselves or as
published or recognised by them. ' You may make a handbill evidence
against a man, if I may so say, by retrospective light arising from his

(r) R. V. Desmond, 11 Cox, 146. 566, expressly in point, and refused to

(a) B. V Lacy, 3 Cox, 517, Piatt, B., and reserve the point. See ante, p. 194.

WilUams J., who considered R. v. Rrost, (t) Ibid.

9 C. &. P. 129, and R. v. Hunt, 3 B. & Aid. {u) 5 Cox, 404.

CHAP. VI.] Evidence. 197

conduct. If a handbill says that certain things wiU be done by certain
persons, and that handbill is circulated, where those persons probably
saw it, and they do the very thing that the handbill indicates they would
do, when that is in evidence, I am of opinion that the bill would be
admissible against them ; but we are not at that stage yet.' But in E. v.
Eowlands (v), another indictment arising out of the same transactions,
where, in addition to the evidence in the previous case, it was proved
that E. had been at the ' Swan ' whilst the bill was exhibited there, and
P. had been seen going in and out, and the bill was in such a situation
that he must have seen it ; Erie, J., held that it was admissible. ' If it
is evidence against any one of the defendants, it is admissible.' ' I
believe it is admissible against those in respect of whom I draw the infer-
ence that they saw it in the window; those in respect of whom it announces
any intention. G. and W. are the two that are named in it. It purports
to be an instrument by P., and I think there is evidence before me, from
which I am of opinion that P. had seen that instrument, and it is
probable, by his not objecting to it, that he permitted his name to be used
to that instrument.' ' I am clear that it is evidence as against one of
the defendants, it being published in his name, and, according to the
evidence, being probably seen by him ' (w).

In E. V. Blake (x), on an information for a conspiracy with one T. to pass
imported goods without paying the full duty, it appeared that T. acted
as agent for the importer of the goods, and B. as landing-waiter at the
Custom-house, and that it was T.'s duty to make an entry known de-
scribing the quantity and particulars of the goods necessary to determine
the amount of duty. The entry was left at the Custom-house, and
the particulars were copied into a Blue-book at the Custom-house, which
was delivered to B., whose duty was to examine the goods, and, if he
found them correspond with the particulars in the Blue-book, to write
' Correct ' across the entry, whereupon the goods would be delivered to the
importer upon payment of the duties so ascertained. The goods were
passed to T., the duty having been paid on the entry made out by T.,
which corresponded with the entry in the Blue-book. It was then pro-
posed to put in T.'s Day-book, and to shewby T.'s own entry therein that
the quantity of goods was much larger than appeared by the Perfect
Entry and the Blue-book, and that the importer had been charged the
duties by T. on such larger amount, and had paid them accordingly. It
was objected for B. — T. not being on his trial — that the entry in T.'s
book was not evidence against B. ; but Denman, C.J., admitted the
evidence ; and on a motion for a new trial it was held that the Day-book
was evidence of something done in the course of the transaction, and
was properly admitted as a step in the proof of the conspiracy (x).
Evidence was also given to shew that a cheque drawn by T. for a certain
sum, and dated after the goods were passed, had been cashed, and the
; proceeds traced to B. It was then proposed to put in evidence the
i counterfoil of the cheque in T.'s cheque-book, on which was written an
J account shewing that the cheque was drawn for a sum amounting to

(«) 5 Cox, 436. Bench. See 17 Q.B. 671.

(te) This niling does not appear to have (a;) 6 Q.B. 126,

been questioned in the Court of Queen's

198 Of Criminal Conspiracy. [book i.

half the profit arising from transactions, including the alleged fraud on
the revenue, as manifested by the several items in that account. It was
held that this evidence was not admissible, for the conspiracy to defraud
the customs had been carried into effect before the cheque was drawn ;
and the writing on the counterfoil was in efffect a declaration by T. for
what purpose he had drawn the cheque, and how the money was to be
applied ; and no declaration of T. could be received in evidence against
B. which was made in B.'s absence, unless it related to the furtherance
of the common object ; which this did not (y).

On an indictment for conspiracy to defraud the shareholders of the
British Bank by falsely representing its affairs to be prosperous, the
examination of one of the defendants, which had been taken on a petition
for winding up the bank after the date of the alleged conspiracy, was
tendered in evidence. This examination shewed that this defendant was
aware of the insolvency of the bank, and alleged that the other directors
had the same knowledge. It was objected that this examination was
not evidence of any act done in furtherance of the conspiracy ; and that
it was not admissible until the other defendants were connected with
this defendant in the conspiracy. But Campbell, C.J. (after consulting
the other judges of the Queen's Bench), said : ' We are all of opinion that
the deposition is admissible against this defendant, as tending to shew his
knowledge before and at the time of his committing the overt act, but not
as against the other defendants. Therefore only such parts should be
read as refer to the deponent alone' (z).

Where an indictment alleged that the defendants conspired falsely to
accuse the prosecutor of having feloniously forged a cheque, and that in
execution of such conspiracy a letter was written by one of the defendants,
in which he stated that he had been employed to investigate the circum-
stances attending the forging of the cheque, and proof was given of the
letter, and also of conversations referring in like manner to a cheque,
which the defendants charged the prosecutor with having forged, but the
cheque itself was not produced ; it was objected that the cheque was so
incorporated with the evidence, that the prosecutor was not entitled to
prove the conversations without producing the cheque to which they
referred, which it appeared from the evidence was in existence, and in
the possession of the defendants. Tenterden, C.J., ruled that it was not
essential to prove the contents of the cheque or to produce it, but that it
was enough to take the conversations as they passed ; and on a motion for
a new trial this ruling was affirmed, the Court being of opinion that the
whole of the charge against the defendants was founded on the letter
set out in the indictment, which was written by one of the defendants
upon the appUcation of the other ; and they having taken upon them-
selves to treat as an existing thing a cheque, it was not necessary, on the
part of the prosecutor, to produce it in evidence, even although it appeared
that it actually existed. But it might be a fabrication on the part of
the defendants ; there might be no such cheque, and then it could not be
produced (a),

(y) R. V. Blake, supra. (a) R. v. Ford and Aldridge, 1 N. & M.

(z) R, V. Esdaile, 1 F. & F. 213. 776.

CHAP, vi.] Evidence. 199

A count alleged that tlie defendants, a husband, wife, and daughter,
being in low and indigent circumstances, conspired to cause the husband
to be reputed and believed to be a person of considerable property, and
in opulent circumstances, for the purpose and with the intent of cheating
and defrauding divers tradesmen who should bargain with them for the
sale to the husband of goods, the property of such tradesmen, of great
quantities of such goods, without paying for the same. The wife and
daughter were usually together, and on some occasions represented that
they were in independent circumstances, having an income derived from
the interest of money coming in monthly ; and in others the wife had
said her husband was in independent circumstances. These statements
were made in the absence of the husband ; but it was proved that he
either occupied the lodgings which were hired under these representa-
tions, or that the goods were delivered at the places where all the
defendants lodged. Piatt, B., is reported to have held that there was no
evidence of any conspiracy to represent the husband as a person of
considerable property (b). Another count alleged the conspiracy in the
same manner as the preceding, but charged the intent to be to defraud
persons who should let the husband lodgings for hire, of divers large sums
of money, being the sums agreed to be paid for the hire of such lodgings ;
and Piatt, B., is reported to have held that this count was not supported,
as well on the ground on which the preceding count was not supported,
as because the object of the defendants was to obtain possession of the
lodgings, and to deprive the landlord of the use of the rooms, but not to
deprive him of the price, which was only incidental to their occupation.
They had no object in depriving him of the profits of the rooms, apart
from their own occupation of them (c).

Two counts of an indictment charged the defendants with conspiring
to obtain from the prosecutor certain bills of exchange accepted by him,
and to cheat and defraud him of the proceeds of the said bills ; other
counts charged a conspiracy to defraud the prosecutor of his monies.
Evidence was given to shew the obtaining of the acceptances, but it
appeared that the prosecutor had not parted with any money, and there
was no reason to suppose that he intended to take up the acceptances,
and it was not shewn that the bills which he accepted were ever in his
hands, except for the purpose of his writing his acceptances, they having
been brought to him complete, except as to his signature. The jury
having found the defendants guilty on these counts, a new trial was
moved for on the ground that the verdict was unsupported by the evidence,
because the charge was of a conspiracy to obtain acceptances from the
prosecutor, whereas he proved that the acceptances were ready written,
and in possession of the defendants, or some of them, and nothing was
sought but his signature. But the Court of Queen's Bench considered
that it was only by the signature of the prosecutor that the bills became

(6) E. V. Whitehouse, 6 Cox, 38. the town together, lived together, and

in this case, and my reoolleotion of it is that but the conspiracy could only be inferred

the case went to the jury on all the counts. from a great number of isolated acts, in

The main question in the case was whether none of which were all of the prisoners

every representation made was the repre- engaged,' C. S. G.
sentation of all. The prisoners came to

200 Of Criminal Conspiracy. [book i.

complete ; and his acceptance when given, being without any considera-
tion, was at the instant his, and in his possession. It was also urged that
the entire transaction, as proved by the evidence, was at variance with
the indictment, as all parties well knew that the prosecutor had no
money, nor could be defrauded of any ; and that the real fraud was on
the prosecutor's part, to the prejudice of some expected lender of the
sums mentioned in the bills, in return for acceptances of no value. But
the court held that, though there might be some ground for this imputa-
tion on the prosecutor, yet it would not disprove the fraud practised upon
him, by inducing him to accept bills without a corresponding advance of
cash. Though there was little appearance of solvency in the prosecutor,
those who fraudulently induced him to incur the liability must have
speculated on some pecuniary advantage from it ; and though the money
could in such case only have come from his respectable friends, as he had
no funds of his own, the money intended to be so procured might well be
described for this purpose as his money (d).

A. and C. were indicted for conspiring to defraud a railway company
by obtaining and selling to others non-transferable excursion tickets.
A. had sold the tickets to C. at B., and C. attempted to use them for the
purpose of sending some children back to London. It did not appear
how A. got the tickets ; he had others in his possession. Wightman, J.,
left it to the jury to determine whether the prisoners did concert together
that the tickets should be obtained and used for the purpose of defrauding
the company (e).

On an indictment for conspiracy to cause tinplate-workers to leave
their employment, it appeared that the prosecutors, in consequence of
their workmen leaving their service, had employed Frenchmen. Erie, J.,
held that it was not competent to prove how much the firm had lost by
these Frenchmen, as the amount of loss by any particular set of workmen
was clearly unconnected with the issue whether there was a conspiracy or
not ; but that the sum total of the loss might be proved ; for the very
issue in the matter was the intention to obstruct the business, and the
result of the operations was a relevant fact as to that (/).

Two persons were indicted for felony, in attempting to poison A. B.,
by administering certain poisonous ingredients, as set forth in the indict-
ment. At the same time, an indictment was found against them for
conspiracy to poison the same individual by the same means. On the
trial of the first indictment, the prisoners were acquitted, there being no
proof that the ingredients were poisonous. Parke, J., thereupon directed
an acquittal for the conspiracy also, there being no other proof of a
conspiracy to poison than that by which it was attempted to establish
the felony, viz., that the ingredients were poisonous (g).

Where an indictment against A., B., C, and D., charged that they
conspired together to obtain, ' viz., to the use of them the said A., B.,
and C, and certain other persons to the jurors unknown,' a sum of money
for procuring an appointment under government ; and it appeared that
D. (although the money was lodged in his hands, to be paid to A. and B.

(d) R. V. Gompertz, 9 Q.B. 824. counts ended, ' to the great damage ' of

(e) R. V. Absolon, 1 F. & F. 498. the prosecutors. See 17 Q.B. 671.
if) Kv. Rowlands, 5 Cox, 436. All the {g) R. v. Maudsley, 1 Lew. 51.

CHAP. VI.] Evidence : Trial : Verdict. 201

when the appointment was procured) did not know that C. was to have
any part of it, or was at all implicated in the transaction ; it was held,
that the averment concerning the application of the money was material,
though coming under a viz., and that as to D., the conspiracy was not
proved as laid (h).

Husband and Wife. — On an indictment for conspiracy, the wife
of one defendant was held not to be a competent witness for the others,
a joint offence being charged, and an acquittal of all the other defendants
being a ground of discharge for the husband (i). And, upon an indict-
ment against the wife of W. S. and others for a conspiracy in procuring
W. S. to marry, it was held that W. S. was not a competent witness in
support of the prosecution (j). The present position of the law as to
calling the husband or wife of a defendant as witness against the defendant
is considered post, Book XIII. Chapter V., ' Evidence.'

Trial and Verdict. — Counsel for the Crown is entitled, before opening
his case, to have any of the defendants acquitted, without the assent of
the other defendants, in order that he may call them as witnesses (k).

In E. V. Kroehl (1), the indictment was against A., B., and C. ; and
after the case for the prosecution was closed, C. only called a witness,
whom he examined as to a conversation between himself and A. It was
ruled, that counsel for the prosecution might cross-examine such witness
as to any other conversation between A. and C, although the evidence
should tend chiefly to criminate A. (l).

If upon an indictment for conspiracy, the jury find the defendants
guilty of so much of the indictment as amounts to a misdemeanor, the
Court may pass judgment upon the defendants. The defendants were
indicted for conspiring falsely to indict A. B. for keeping a gaming-house,
for the purpose of extorting money from A. B., and the jury found
the defendants guilty of conspiring to indict A. B., for the purpose of
extorting money, but not to indict him falsely ; and it was held that
enough of the indictment was found to enable the Court to give judg-
ment; for, in criminal cases, it is sufiicient for the prosecutor to prove
so much of the charge as constitutes an offence punishable by law ; and
the jury had found the defendants guilty of conspiring to prefer an indict-
ment for the purpose of extorting money, and that is a misdemeanor,
whether the charge were or were not false (m).

Before the Criminal Appeal Act, 1907 (7 Edw. VII. c. 23), post,
Vol. ii. p. 2009, it was ruled, that after a conviction for a conspiracy,
the defendants must be present in court when a motion was made on
their behalf in arrest of judgment (n). It was not a sufficient excuse
for absence that they were in custody on civil process ; but if they were
in custody on criminal process, the case would be different, for then they
might be charged with the conspiracy also (o). But where an indictment
had been removed into the Court of King's Bench, after verdict, but

{h) R. V. PoUman, 2 Camp. 231. (m) R. v. HoUingberry, 4 B. & C. 329.

(i) R. V. Lookyer, 5 Esp., Ellenborough, (n) R. v. Spragg, 2 Buir. 928 ; 1 W. Bl.

C.J. R. V. Frederick [1738], 2 Str. 1095. R. 209. As to new trials see R. v. Teal, 11

ij) R. V. Serjeant, Ry. & M. 352. East, 307. R. v. Askew, 3 M. & S. 9. R. v.

(k) R. V. Rowland, Ry. & M. 401, Abbot, Lord Cochrane, 3 M. & S. 10.

C. J. (o) R. V. HoUingberry, uU sup.

{I) 2 Stark. (N. P.) 343.

202 Of Criminal Conspiracy. [book i.

before judgment, it does not appear to have been necessary that the
defendants should appear in the Court of King's Bench, the proceeding
being in the nature of a special verdict, and the party not being con-
sidered as convicted, until after the Court had determined upon the
verdict (p). The Criminal Appeal Act, 1907, deals with special verdicts
and abolishes new trials, but does not deal specifically with motions in
arrest of judgment (q).

Where a count contains only one charge of conspiracy against several
defendants, the jury cannot find one of them guilty of more than one
charge. Where, therefore, a count charged several defendants with
conspiring to do several illegal acts, and the jury found one of them guilty
of conspiring with some of the defendants to do one of the acts, and
guilty of conspiring with others of the defendants to do another of the
acts, the finding was held bad ; as it amounted to finding that one defend-
ant was guilty of two conspiracies, though the count charged only one(r).
So where a count charged eight defendants with one conspiracy to effect
certain objects, a finding that three of the defendants were guilty generally
and that five of them were guilty of conspiring to effect some, and not
guilty as to the residue of these objects, was held to be bad and repugnant ;
for the finding that three were guilty was a finding that they were guilty
of conspiracy with the other five to effect aU the objects of the conspiracy ;
whereas, by the finding as to the five, it appeared that those five were
guilt j^ of conspiring to effect only some of those objects (s).

Punishment. — The present (t) punishment for most forms of con-
spiracy, which are indictable as misdemeanors, is by imprisonment, fine,
and sureties for the good behaviour, at the discretion of the Court (u).

By 14 & 15 Vict. c. 100, s. 29, whenever any person shall be convicted
of any conspiracy to cheat or defraud, or to extort money or goods, or
falsely to accuse of any crime, or to obstruct, prevent, pervert, or defeat
the course of public justice, the court may award imprisonment for any
term now warranted by law, and hard labour during the whole or any
part of such imprisonment. By 24 & 25 Vict. c. 100, s, 4, conspiracies
to murder are punishable as statutory felonies.

Where a general verdict is returned on some or all of the counts of
an indictment for conspiracy, framed on the same facts, judgment should
be entered separately on each count to which it applies, so that if any
count is subsequently declared bad the judgment may stand on the good
counts (v).

ip) R. V. Nicholls, 2 Str. 1227. Short & for life ; to have those lands wasted, their

Mellor, Cr. Pr. (2nd ed.), 122. houses razed, their trees rooted up, and their

iq) Short & MeUor, Or. Pr. (2nd ed.), 142. bodies committed to prison. Butthis judg-

(r) O'Connell w. E., 11 01. & F. 155; 5 ment was not inflicted upon those who were

St. Tr. (N. S.) 1. convicted only of conspiracies of alessaggra-

(«) Ibid. vated kind, at the suit of the party. 1372,

(<) In former times, persons convicted of a 46 Ass. 11, pi. 307; Wright on Conspiracy,

conspiracy at the suit of the King to accuse 20 ; 1 Hawk. c. 72, s. 9 ; 4 Bl. Com. 136.

another person of a capital offence, were The pillory was also part of the punishment

liable to receive what was called the villain- until its aboUtion, vide post, p. 250.

CMS judgment, used in attaints for crimes of {u) Post, pp. 211, 217, 218, 249, tit.

falsity in relation to justice, that is, to lose ' Punishments.'

theii liberam legem, wherehj they were dis- (v) O'Connell v. R., 11 01. & F. 155.

credited and disabled as jurors or witnesses ; Castro v. R., 6 App. Cas. 229. R. v. Gom-

to forfeit their goods and chattels and lands pertz, 9 Q.B. 824.

CHAP. VI.] Soliciting or Inciting to Commit Crime. 203

By 38 & 39 Vict. c. 86, s. 3 {aifite, p. 178), the punishment is limited
in the case of conspiracies to commit offences punishable on summary
conviction, to three months' imprisonment or such longer term as could
be imposed if the offence had been committed by one person.

C. — Soliciting or Inciting to Commit a Crime.

It has already been shewn {ante c. v.) that where a crime has been
committed, those who counselled, procured, or commanded its commis-
sion are liable as accessories before the fact in felony, and as principals
in misdemeanor. Even where a crime is not in fact committed, those
who have unsuccessfully solicited or incited another to commit it are, at
common law, guilty of an indictable misdemeanor (whether the crime
to which the solicitation or incitement related is either by common law
or statute a felony (w) or a misdemeanor), quite distinct from the
offences dealt with by the Accessories and Abettors Act, 1861 {ante
p. 130) {x). The line between inciting to commit a crime and ' attempt-
ing ' to commit a crime is not very clearly defined. Where a person was
indicted for soliciting a servant to conspire to cheat and defraud his master,
and it was proved that such person had offered a bribe to the servant as
an inducement to sell his master's goods at less than their value, it was
held that he might properly be convicted of inciting {y). And it has been
held an indictable misdemeanor to endeavour to provoke another to
commit the misdemeanor of sending a challenge to fight a duel {z) : and
to attempt to incite a lad to commit a felony by sending him a letter
which did not reach him {a), or which he did not read (6). The first of
these cases is rather of provocation than incitement, and the second treats
incitement as a substantive misdemeanor, and an attempt to incite is
also a misdemeanor ; conversely it would seem to be an offence to incite
another to attempt to commit a crime (c). In an old case, attempt to
suborn another to commit perjury was held a misdemeanor {d). The
ofience would now be described as inciting to commit perjury, for the
offence of subornation of perjury is not committed unless the perjury
itself is committed. From one point of view it may be said that the
term attempt applies to a person who tries to commit the crime himself,
and the terms solicitation or incitement to the person who tries to get
another to commit the crime, who, if the crime were committed, would
be an accessory before the fact.

The gist of the offence of incitement here under discussion is that
the person incited has not committed the crime to which the incitement

(w) In R. V. Leddington, 9 C. & P. 79, (a) E. v. Banks, 12 Cox, 393.

Alderson, B., is reported as having ruled (6) R. v. Ransford, 13 Cox, 9. In this

that an indictment did not lie for inciting case Pollock, B., relied on R. v. Scofield

another to commit suicide : sed qucere. [1784], Cald. 397.

See Steph. Dig. Cr. Law (6th ed. ), art. 48, (c) See R. v. Brown, MS. Archb. Cr.

and post, pp. 661 et seq. PI. (23rd ed.), 1294, an indictment for in-

{x) R. V. Gregory, L. R. 1 C. C. R. 77 : citing to commit an offence against 24 & 25

36 L. J. M. C. 60. " Vict, c. 100, s. 58, post, p. 829.

(y) R. V. de Kromme, 17 Oox, 492. (d) Anon, before Adams, B., cited in R.

(2) R. V. Phillips, 6 East, 464. Law- v. Scofield, Cald. 400, and R. v. Higgins,

rence, C. J., there said, ' All such acts or 2 East, 14, 17, 22. This is probably the

attempts as tend to the prejudice of the same case as R. v. Edwards, MS. Sum. tit.

community are indictable.' ' Perjury.'

204 Soliciting or Inciting to Commit Crime. [Book i.

relates. To solicit a servant to steal, or to conspire with the inciter to
steal his master's goods, or to solicit a person to conspire to cheat and
defraud, is a misdemeanor, and on an indictment for the solicitation
it is not necessary to aver or prove that the servant stole the goods, or
entered into the proposed conspiracy to steal them, nor to prove more than
the soliciting and inciting (e). In such a case it is left for the defendant to
prove that the incitement was merged in the completed offence, whether
felony or misdemeanor, and that consequently the indictment does not lie
for the incitement, i.e., that the alleged inciter was, in fact, accessory before
or at the fact. The question has been raised whether a person can be
guilty of inciting another to commit a crime, unless the person incited
knows the act intended is a crime (/). Mr. Greaves was of opinion that
the guilt of the inciter cannot depend on the state of mind of the incited,
and that the state of mind and intention of the inciter, coupled with
the act of incitement, that constitute the offence (g). It is well established
that a man is liable as a principal who commits a crime through an
innocent agent (h). B. may incite A. to do an act which B. knows to
be a crime, e.g., to carry away goods which B. does, and A. does not
know, belong to C, or to present a cheque which B. knows and A. does
not know to be forged. In the view of Sir James Stephen (i), the facts
in E. V. Welham indicate that the accused incited H. to carry off corn
which H. supposed the accused to have a right to remove, and he considers
that the offence was an attempt to commit a felony by an innocent agent,
and not an incitement to commit a felony. In a case where incitement
to commit a felony (murder) was made a statutory felony, it was held
that to warrant conviction for the statutory offence it must be proved
that a letter or communication containing the incitement actually reached
the person incited, but that in the case of the common-law misdemeanor
of incitement it would be enough to shew that the mcitement had been
posted to the person on whom it was intended to operate (/).

(e) R. v. Higgins, 2 East, 5. R. v. 1 Dears. 547, where instigation to A.

Gregory, ubi sup. R. v. de Kromme, to administer poison to B. under circum-

%ibi sup. stances which would have rendered A. an

(/ ) R. V. Welham, 1 Cox, 192, Patteson, accessory before the fact if poison had been

J., after consulting Parke, B. Felony was given, was held not to be an attempt to

here in question. administer poison within 7 Will. IV. & I. 1

(g) 1 Russell on Crimes (6th ed.), 196n. Vict. c. 85, s. 1, now replaced by 24 & 25

{h} Ante, p. 104. Vict. c. 100, s. 11.

(i) Dig. Cr. Law (6th ed.), note ii. p. 399. (/) R. v. Krause [1902], 66 J. P. 121,

He supports his opinion by reference to R. Alverstone, C.J.
V. Williams, 1 Den. 39, cited in R. v. Roberts,

( 204a )

CANADIAN NOTES.

OF ATTEMPTING, CONSPIRING, AND INCITING TO COMMIT CRIME.

(a) Attempt to Commit Crime. — An act or omission with intent to
commit an offence is an attempt to commit the offence. — Code sec. 72.

(1) Punishment for Attempt to Commit Certain Indictable Of-
fences.—Code sec. 570.

(2) To Commit other Indictable Offences. — Code sec. 571.

(3) To Commit Statutory Offences. — Code sec. 572.
Indictment not Insufficient for Lack of Detail. — Code sec. 863.
Special provision is made by the Code in respect of "attempted"

offences as follows: To take unlawful oath, sec. 130; to influence
member of a mimicipal council, sec. 161(6) ; to obstruct justice, sec.
180(d); to break prison, see. 188; to commit sodomy, sec.
203; to procure indecent act with a male person, sec. 206;
girl to have unlawful carnal connection with a third party, see.
216 ; to carnally know an idiot, sec. 219 ; to commit murder, sec. 264 ;
to commit suicide, sec. 270 ; to choke, sec. 276 ; to cause bodily injuries
by explosives, sec. 280; to commit rape, sec. 300; to defile children
under fourteen, see. 301 ; to commit arson, sec. 512 ; to set fire to crops,
see. 514 ; to wreck, sec. 523 ; to injure or poison cattle, sec. 536 ,

When the complete commission of the offence charged is not proved,
but the evidence establishes an attempt to commit the offence, the
accused may be convicted of such attempt and punished accordingly. _
Code sees. 949 and 951.

When an attempt to commit an offence is charged, but the evi-
dence establishes the commission of the full offence, the accused shall
not be entitled to be acquitted, but the jury may convict him of the
attempt unless the Court before which such trial is had thinks fit,
in its discretion, to discharge the jury from giving any verdict upon
such trial, and to direct such person to be indicted for the complete
offence.

(2) After a conviction for such attempt, the accused shall not be
liable to be tried again for the offence which he was charged with
attempting to commit. Code sec. 750.

An indictment, charging that the accused unlawfully attempted
to steal from the person of an imknown person the property of such
unknown person, without giving the name of the person against
whom the offence was committed, or the description of the property

2046 Indictment for Attempt. [book i.

the accused attempted to steal, is sufficient. And where a prisoner
is indicted for an attempt to steal, and the proof establishes that the
offence of larceny was actually committed, the jury may convict of
the attempt, unless the Court discharges the jury and directs that the
prisoner be indicted for the complete offence (Code sec. 712). R. v.
Taylor (1895), 5 Can. Cr. Cas. 89 (Que.).

A defendant charged with offering money to a person to swear
that A, B and C gave him a certain sum of money to vote for a
candidate at an election, was admitted to bail and a recognizance taken
by one justice of the peace. It was held that the offence was not
an attempt to commit the crime of subornation of perjury, but
something less, being an incitment to give false evidence or particu-
lar evidence regardless of its truth or falsehood, and was a misde-
meanour at common law, and that the recognizance was properly
taken by one justice, who had power to admit the accused to bail
at common law, and that section 696 ,of the Code did not apply.
R. V. Cole, 5 Can. Cr. Cas. 330, 3 O.L.R. 389.

If ,a person is charged with the commission of an offence and
there is not sufficient evidence to convict him of the offence charged,
but there is evidence of an attempt to commit the offence notwith-
standing that the accused was acquitted, he could not again be put
on trial for an attempt to commit the offence for that was included
in the charge on which he was tried, and he should have been con-
victed of the .attempt. R. v. Cameron, 4 Can. Cr. Cas. 385.

This provision applies to the summary trial of indictable offences,
as well as to speedy trials and trials by jury. And when the prisoner
consented to be tried sununarily upon a charge of pocket picking,
he must be taken to have assented to be tried summarily for what-
^ever offence he might properly be found guilty of upon the said
charge, ,and having been properly found guilty upon the said charge of
an attempt to commit the offence charged, he must be held to have
been legally convicted upon the said trial. R. v. Morgan (No. 1), 5
Can. Cr. Cas. 272, 3 O.L.R. 356.

_ Where on an indictment for a principal offence, and for an at-
tempt to commit such offence, the evidence is wholly directed to the
proof of the principal offence, the jury's verdict of guilty of the
attempt only will not be set aside, although there were no other wit-
nesses in respect of the attempt than those whose testimony, if wholly
believed, shewed the commission of the greater offence. It is within
the province of the jury to believe, if it sees fit to do so, a part only
of a witness 's testimony, and not to believe the remainder of the same
witness's testimony, and it may therefore credit the testimony in re-
spect of a greater offence only in so far as it shews a lesser offence,
R. V. Hamilton, 4 Can. Cr. Cas. 251.

CHAP. VI.] Inciting and Attempting. 204;c

Note. — It is an irrebutable presumption of law that a boy under
fourteen is not capable of having carnal knowledge, and therefore
cannot be convicted of rape or sodomy. R. v. Allen, 1 Dennison 's Cr.
Cas. 364 ; R. v. Hartlen, 2 Can. Cr. Cas. 12. Could he be convicted
of an attempt to commit either offence, in view of Code sec. 72 ? The
elements of intent and an overt act would be present, and the section
says that possibility of accomplishment is not an essential to the
commission of the offence. The Imperial Draft Code, 1879, says:
"Everyone who, believing that a certain state of facts exists, does or
omits an act, the doing or omitting of which would, if that state of
facts existed, be an attempt to commit an offence, attempts to commit
that offence, although its commission in the manner proposed was, by
reason of the non-existence of that state of facts at the time of
the act or omission, impossible."

The Imperial Bill of 1880 adopted the language now used in sec-
tion 72 of the Canadian Code, and in Taschereau's Criminal Code, p.
44, it is said that the section is ' ' somewhat altered in shape and phrase-
ology, but not in substance," from, the English Draft Code of 1879,
quoted above.

In C. V. Jacobs, 9 Allen (Mass.) 274, it is said that an accused
"himself capable of doing every act on his part to accomplish that
object cannot protect himself from responsibility by shewing that by
reason of some fact unknown to him at the time of his criminal
attempt, it could not be carried fully into effect in the particular
instance. ' '

The Code of 1879 in enacting that the non-existence of certain
facts should not be a defence to the charge of an attempt, deals, ap-
parently, with facts extrinsic to an accused himself capable of com-
pletely committing the crime attempted, whereas the incapacity of a
minor is a fact, irrebutably presumed, intrinsic to the accused, who
under the definition in the Massachusetts ease above cited, would not
be guilty of an attempt, not being "himself capable."

It is suggested that the language of Code see. 72 is broader than
the words of the section in the Code of 1879, and wide enough to
cover even the intrinsic incapacity of the accizsed, and, therefore,
that a boy under fourteen can be convicted of an attempt to commit
rape or sodomy.

(&) Conspiracy.

The offence of conspiracy is treated of in the following Code
sections : —

Conspiring (a) to do His Majesty Bodily Harm. — Code sec. 74(e).

(6) To Levy War. — Code sec. 74:{g).
Conspiring is an Overt Act. — Code sec. 75.
Intention (a) to Depose the King.
(b) To Levy War.

204d Conspiracy. [book i.

(c) To Induce Invasion, Manifested hy Conspiring with
any Person, is a Treasonable Offence, Punishable by Im-
prisonment for Life. — Code sec. 78.

Conspiracy to Intimidate a Legislature. — Code sec. 79.

Conspiracy to bring -about a change in the government by bribing
members of the Legislature to vote against the government is an
indictable offence as a common law misdemeanour. The fact that the
Legislature has po-n^er by statute to punish as for a contempt does
not oust the jurisdiction of the Courts where the offence is of a crim-
inal character; the same act may be in one aspect a contempt of the
Legislature aind in another aspect an indictable offence. R. v. Bunt-
ing, 7 Ont. R. 524.

Seditious Conspiracy, Definition of. — Code sees. 132, 134.

Conspiracy to bring False Accusation. — Code sec. 178.

To Induce a Woman to Commit Adultery. — Code sec. 218.

To Murder. — Code sec. 266.

To Commit Indictable Offence. — Code sec. 573.

Conspiracy to Defraud. — See Code sec. 444.

A conspiracy to defraud is indictable, although the conspirators
have been unsuccessful in carrying out the fraud. R. v. Frawley, 1
Can. Cr. Cas. 253.

A conspiracy to defraud is indictable, ^although the object was
to commit civil wrong, and although if carried out the act agreed
upon would not constitute a crime. R. v. Defries, 1 Can. Cr. Cas. 207.

The doctrines of commercial agency do not apply to prevent the
operation of the criminal law. So where one Clark, a policyholder of
a fire insurance company, conspired with Howse, their local agent,
to defraud the company, and handed to Howse for transmission to the
company an unfounded proof of claim for pretended losses for fire,
and obtained the money through Howse from the company, it was
held that the knowledge of Howse of the falsity of the pretence
could not be imputed as the knowledge of the company so as to affect
the criminality of Clark. R. v. Clark, 2 B.C.R. 191.

Upon a charge of conspiracy to defraud the Canadian Pacific
Railway by bribing clerks in the company's employ, to illegally and
fraudulently disclose information of the secret audits of trains to be
made, and to furnish such information to the conductors to enable
them to be prepared for the audits when made, and at other times
to be free to retain fares and to allow passengers to ride free or at
a reduced fare, the Court properly rejected evidence of conductors
to the effect that if they knew the date of a proposed secret audit,
they would communicate it to the conductor whose train was to be
audited for a purpose other than that of defrauding the company.
R. v. Carlin (No. 2), 6 Can. Cr. Cas. 507.

CHAP. VI. J Inciting and Attempting. 204e

An indictment for conspiracy to defraud may properly charge
that the conspiracy was with persons unknown, if neither the Crown
nor the private prosecutor had definite information of the identity
of the alleged co-conspirators. Where at the trial of such an indict-
ment the name of one of the alleged co-conspirators is for the first
time disclosed in the testimony of a Crown witness, that information
may then be added to the. statement of particulars of the indictment.
R. V. Johnston, 6 Can. Cr. Cas. 232.

In an indictment charging a conspiracy to defraud it is not
necessary to set out overt acts done in pursuance of the illegal agree-
meht or conspiracy, nor is it necessary to name the person defrauded
or intended to be defrauded. Before the acts of alleged conspiracy
. can be given in evidence there ought to be some preliminary proof
to shew an acting together, but it is not necessary that a conspiracy
should first be proved. R. v. Hutchinson, 8 Can. Cr. Cas. 486, 11
B.C.R. 24.

The offence of conspiracy to defraud under Code sec. 444 does
not include a conspiracy to defeat a candidate's chances of election
by the employment of unlawful devices. A charge of conspiracy the
particulars of which severally allege that the accused conspired to
' def raiid a candidate at an election to the Saskatchewan Legislature,
the electors of the division and the public, by illegally obtaining the
return of the opposing candidate, does not disclose an offence under
sec. 573 of the Code, for the acts alleged as the object of the con-
spiracy do not constitute an indictable offence either by statute or at
common law. R. v. Sinclair, 12 Can. Cr. Cas. 20.

Extradition.^-Gonspirsi(ij to defraud is in itself not .an extraditable
offence between Canada and the United States, but extradition will lie
as for a separate crime in respect of an overt act of a conspiracy
which constitutes one of the crimes mentioned in the extradition ar-
rangement. And the extraditable offence of larceny or participation
in larceny is charged sufficiently in an information laid on institut-
ing extradition proceedings therefor, if, following a charge of con-
spiracy to defraud between the accused and another person and an
embezzlement and theft by such other person in pursuance thereof,
the information alleges that the accused "did participate in the said
offence of embezzlement and theft." United States v. Gaynor; Re
Gaynor and Greene (No. 3), 9 Can. Cr. Cas. 205 (P.C).

Conspiracy in Bestraint of Trade.— Code sees. 496, 497, 498, 581.

Trade Union.~The Trade Unions Act, R.S.C., 1906, ch. 125,
defines the expression "trade imion" to mean (unless the context
otherwise requires) such combination whether temporary or per-
manent for regulating the relations between workmen and masters:
or for imposing restrictive conditions on the conduct of any trade
or business as would, but for that statute, have been deemed to be

204f Trade Conspiracies. [book i.

an unlawful combination by reason of some one or more of its pur-
poses being in restraint of trade. R.S.C. 1906, ch. 125, sec. 2; and
see Code sec. 6.

Undue Limitation and Unreasonable Enhancement. — The preven-
tion of every enhancement of prices or every lessening of competi-
tion in the purchase, barter or sale of commodities was not intended
to be included in sub-sec. (&), of sec. 498, for where enhancing, pre-
venting or lessening is specifically referred to it is qualified by the
word "unreasonably" or "unduly." Sub-sec. (6) cannot well have
been intended to embrace every combination to prevent or restrain
particular kinds of systems of trading or particular kinds of bar-
gains. At most, it includes only combinations for the direct purpose
of preventing or materially reducing trade or commerce in a general-
sense with reference to a commodity or certain commodities, or for
purposes designed or likely to produce that effect. Gibbins v. Met-
calfe (1905), 15 Man. R. 583.

Sub-section (&) of sec. 498, originated with the Code Amendment
of 1900. It applies not only to regularly organized trade unions,
as that term is defined by the Trade Union Act, R.S.C. eh. 125, but
to any voluntary organization of labourers. Senate Debates, 1900,
page 1044. As to trade unions there is a provision in R.S.C. ch. 125, as
follows: (Sec. 2) : "The purposes of any trade miion shall not by
reason merely that they are in restraint of trade, be deemed to be un-
lawful so as to render any member of such trade union liable to erim-
inal prosecution for conspiracy or otherwise, or so as to render void
or voidable any agreement or trust."

1. The definition of a trade combination or conspiracy in Code
sec. 496 applies to sub-sec. (b) of sec'. 498, not to sub-sees, (a), (c) and
(d) thereof which in themselves define the classes of offence to which
they relate.

2. A conviction on indictment for conspiring with certain per-
sons named and others unknown "or with some or one of them" is
not invalid for uncertainty, the names of the persons being in the
nature of particulars only and not material to the constitution of the
offence.

3. Where a defendant is arraigned and tried alone upon a charge
of conspiracy he may be convicted and sentenced without first pro-
ceeding with the trial of the co-conspirators.

4. On an appeal both on the facts and the law under Code see.
1012 in a trade combine case tried without a jury, the Court of
Appeal is to decide whether the judgment below should have been for
the accused or whether there was evidence on which the judgment
against him could be reasonably supported. R. v. Clarke' (No. 2), 14
Can. Cr. Cas. 57.

CHAP. VI.] Inciting and Attempting. 204(7-

A lock-out agreement made by an employers' association follow-
ing a demand from the employees' trade union for an increase in
wages, is not a contravention of sec. 498 of the Code, as to trade
combinations, although the contracting parties thereby agree to dis-
charge from their employ all members of the employees' union, and
not to re-employ them on a higher scale of wages than the rate pre-
vailing at the date of the agreement.

2. On proof of damage to the signatories of the agreement through
breach of the conditions, a civil action lies upon the promissory note
given by the defaulting subscriber to trustees for the association to
ensure the carrying out of such agreement. Lefebvre v. Knott, 13
Can. Cr. Cas. 223.

The offence of conspiring to unduly prevent or lessen competition
in the sale or supply of an article of commerce under Cr. Code see.
498(d) may exist without regard to the question whether the effect
of the combine has been to raise or lower prices.

Such a charge as regards the lumber trade is supported by evidence
that a trade association for whose actions the defendant was respon-
sible assumed to fix a regular price of lumber in the various locali-
ties in which their members traded and to prevent persons from
engaging in thfe lumber trade in those localities except with the con-
sent ,and approval of the association through its officers and subject
to its control both as to the minimum prices to be charged the public
and as to the places in which new lumber yards should be started.
The King v. Clarke (No. IJ, 14 Can. Cr. Cas. 46. .

Indictment for Conspiracy. — Code sees. 859, 860, 863.

An indictment for conspiracy to defraud is valid without setting
out any overt acts and the name of the person injured or intended
to be injured need not be stated therein. E. v. Hutchinson (1904),
8 Can. Cr. Cas. 486 (B.C.).

In a case of conspiracy to do that which is not a crime or to do a
wrong which is not well known as being the subject of a criminal con-
spiracy, the facts should be set out in the indictment that it may ap-
pear whether or not the conspiracy charged is an indictable offence.
An indictment for conspiracy to cure another of a sickness endanger-
ing life, "by unlawful and improper means" and thereby causing
his death is bad and should be quashed because it does not specify
the unlawful and improper means nor indicate the specific crime or
wrong intended to be relied upon. R. v. Goodfellow (1906), 10 Can
Cr. Cas. 424, 11 O.L.R. 359.

Particulars furnished under see. 859 of the Code have not the effect
of .amending or extending the scope of the original indictment or'
charge, and the inclusion of a separate and distinct offence as a par-
ticular under a charge of conspiracy will not authorize a conviction

204:h Overt Acts of Conspiracy. [book i.

which would otherwise not be within the scope of the indictment. R.
V. Sinclair (1906), 12 Can. Cr. Cas. 20 (Sask.).

Any overt act of conspiracy is to be viewed as a renewal or con-
tinuation of the original agreement made by all of the conspirators,
and if done in another jurisdiction than that in which the original
concerted purpose was formed, jurisdiction will then attach to auth-
orize a trial of the charge in such other jurisdiction. R. v. Connolly,
1 Can. Cr. Gas. 468.

It is not necessary to prove that the defendants actually met
together and concerted the proceeding; it is sufficient if the jury
are satisfied from the defendants' conduct, either together or severally,
that they were acting in concert. R. v. Fellowes, 19 U.C.Q.B. 48, 58.
Farquhar v. Robertson, 13 Ont. P.R. 156.

The jury may group the detached acts of the parties severally,
and view them as indicating a concerted purpose on the part of all
as proof of the alleged conspiracy. R. v. Connolly, 1 Can. Cr. Cas.
468.

When the existence of the common design on the part of the defen-
dants has been proved, then evidence is properly receivalble as against
all of what was said or done by either in furtherance in the common
design. Ibid.

Limitation of Prosecution. — Code sec. 1141, which limits certain
proceedings for penalties and forfeitures to two years after the of-
fence, does not apply to bar a prosecution where the offence was a
continuing one, the .association remaining. in active operation under
the presidency of the defendant up to the commencement of the prose-
cution. The King v. Elliott, 9 Can. Cr. Cas. 505, 9 O.L.R. 648.

Inciting to Commit Crime. — Counselling a woman in Canada to
submit in a foreign country to an operation to procure her mis-
carriage the submission to which in Canada would be an indictable
offence is not, in itself, indictable in Canada, if the operation is per-
formed in a foreign country. R. v. Walkem, 14 Can. Cr. Cas. 122.

( 205 )

CHAPTER THE SEVENTH.

OF PUNISHMENTS.

Sect. I. — Death.

When the first edition of this work was published, high treason, piracy,
and a very large number of felonies were punishable by death (a). In
fact, at common law, and by the legislation prior to 1820, the usual
sentence of the law on a conviction for felony was death by hanging.
To this rule there were only two exceptions at common law, mayhem,
and larceny of money or chattels of a value not exceeding 12d. — an excep-
tion dating back to Saxon times (b). The number of offences for which
capital punishment can now be awarded has, by piecemeal legislation
between 1808 and 1861 (c), been reduced to four — high treason (d), felonies
against the Dockyards Protection Act, 1772 (12 Geo. III. c. 24), piracy
accompanied by violence (7 Will. IV. & 1 Vict. c. 88), s. 2, and wilful
murder (24 & 25 Vict. c. 100, s. 2).

By the ChUdren Act, 1908 (8 Edw. VII. c. 67), s. 103, ' sentence of
death shall not be pronounced on or recorded against a child (e) or young
person (/), but in lieu thereof the Court shall sentence the child or young
person to be detained during His Majesty's pleasure, and if so sentenced
he shall, notwithstanding anything in the other provisions of this Act,
be detained in such place and under such conditions as the Secretary
of State may direct, and whilst so detained shall be deemed to be in legal
custody ' (g).

The severity of the old law was mitigated by the privileges of benefit of
clergy (h) . During the nineteenth century, the policy of the legislature was

(o) The number is said to have been press malice aforethought, and to make the

about 180 in 1819 ; Walpole, Hist. Eng. i. killing by a mother of a ohOd under one

191, ii. 58 ; Steph. Hist. Or. L. i. 470. month no longer murder, and by an amend-

(6) ' The King has also ordained that no ment to the Children Act, 1908, moved by

one should be slain for less property than the Lord Chancellor but rejected, it was

xii. pence worth, unless he should fiee or proposed to empower the Court to substi-

defend himself.' Judicia civitatis Lun- tute penal 'servitude or other punishment

donice, temp. Athelstan ; Ancient Laws, cfcc, in the case of conviction of a mother for

of England, ff. 97, 103. murdering her infant under one year of age.

(c) Given in some detail in Steph. Hist. [h) Benefit of clergy was the claim of
Cr. L. vol. i. pp. 472 — 475. See Report of persons in holy orders to exemption from
Royal Commission on Capital Punishment, the jurisdiction of lay tribunals. The
Pari. Pap. 1866. claim was by degrees extended to all per-

(d) Outside the scope of this work.. See sons who could read, and ultimately to all
Arch. Cr. PI. (23rd ed.), tit. ' Treason!' persons (6 Anne, c. 9). The test of

(e) i.e. a person of seven and under four- capacity to read was by requiring the
teen. 8 Edw. VII. o. 67, s. 131. claimant to read the ' neck verse ' (Ps.

(/) i.e. a person of fourteen and under U. 1). The claim could be made only on a
sixteen. 8 Edw. VII., c. 67, s. 131. first conviction unless a certificate of ordina-
ls) By another Bill introduced in 1908 tion was produced (28 Hen. VIIL c. 1 ;
it was proposed to limit the death sentence 1 Edw. VI. c. 12). The claim, if estab-
to murder in the first degree, i.e. with ex- fished, exempted from capital punishment

206 Of Punishment. [book i.

continuous in reducing the number of crimes for which the sentence oi
death could be imposed ; and with the alleviation of the extreme severity
of the law, benefit of clergy was abolished (as anomalous and as an ana-
chronism) by sect. 6 of the Criminal Law Act, 1827 (7 & 8 Geo. IV. c. 28),
and by sect. 7 of the same Act it is provided that ' no person convicted ot
felony shall sufier death unless it be for some felony which was excluded
from the benefit of clergy before or on the first day of the present session
of Parliament (November 14, 1826), or which hath been or shall be made
punishable with death by some statute passed after that day ' (^).

By a series of Acts passed in 1837, the punishment of death was
abolished as to a number of other felonies. The Forgery Act, 1837
(7 Will. IV. & 1 Vict. c. 84) {j), s. 1 substitutes transportation {k) for life
as the maximum punishment for forgeries within a series of enactments
relating to that offence [1). The Piracy Act, 1837 (7 WiU. IV. & 1 Vict,
c. 88), s. 3 makes the like provisions as to all offences in the nature of
piracy (m) except piracy with violence mentioned {ante, p. 205). 7 Will. IV.
& 1 Vict. c. 91, s. 1, does the like as to felonious riot, and inciting to
mutiny and unlawful oaths, and offences under sect. 9 of the Slave Trade
Act, 1824 (5 Geo. IV. c. 113). The penalty of death retained by other
Acts of the year, 1837, as to administering poison (o. 85, s. 2), and burglary
with violence (c. 86, s. 2), and robbery with wounding (c. 87, s. 2), and
setting fire to dwelling-houses, any person being therein, or to ships, and
hanging out false signals (c. 89, ss. 2, 4, 5), was abolished as to these
offences in 1861 (m).

Recording Sentence of Death. — The Judgment of Death Act, 1823
(4 Geo. IV. c. 48), after reciting that ' it is expedient that in all cases
of felony not within the benefit of clergy, except murder, the court before
which the offender or offenders shall he convicted shall be authorised to abstain
from pronouncing judgment of death, whenever such court shall be of opinion
that under the particular circumstances of any case, the offender or offenders
is or are a fit and proper subject or fit and proper subjects to be recommended

on a first conviction. Benefit of clergy was {k) Now penal servitude, see post, p. 210.

abolished in 1827 (7 & 8 Geo. IV. c. 28, (I) 11 Geo. IV. & 1 Will. IV. c. 66 ; 2 &

s. 6), as to commons and clergy, and as to 3 Will. IV. c. 59, s. 19 ; 2 & 3 Will. IV.

peers in 1841 (4 & 5 Vict. c. 22). Before c. 123 ; 2 & 3 Will. IV. c. 125, s. 64 ; 5 & 6

that date benefit of clergy had as to many Will IV. c. 45, s. 12 ; 5 & 6 Will. IV. c. 51,

felonies been taken away by statute. See s. 5. All the recited Acts were repealed in

1 Pollock & Maitland, Hist. Eng. Law, 1837 (7 Will. IV. and 1 Vict. c. 84), or

424—440. 2 Pike Hist. Cr. 452. 1 Steph. 1861 (24 & 25 Vict. c. 95).

Hist. Cr. L. 460. (m) Under 28 Hen. VIII. c. 15 ; 11 Will.

(») Like provision is made as to Ireland III. c. 7 ; 4 Geo. IV. c. 11 ; 8 Geo. I. c. 24 ;

by 9 Geo. IV. c. 54, s. 13. 18 Geo. II. u. 30. See ' Piracy,' post, p. 255.

(j) This Act was repealed in 1874 (37 & {n) 24 & 25 Vict. c. 95. By 1839 only

38 Vict. c. 39) as to the punishment of fourteen felonies were capitally punishable,

offences formerly punishable under the 4th Rep. Grim. Law Commnrs. App. X.

Acts 11 Geo. IV. & 1 Will, IV. c. 66 ; 5 & 6 The number was further reduced in 1861

Will IV. c. 45, or 3 & 4 Will. IV. c. 51, to those stated ante, p. 205.

and (except as to Scotland) as relates to (o) This Act was passed on July 8, 1823.

the punishment of offences formerly pun- The preamble has been repealed by the

ishable under 2 & 3 Will IV. c. 123, or 3 & Statute Law Kevision Act (No. 2 1890).

4 Will. IV. c. 44. S. 2 was repealed in It is said that this Act was passed to

1891 (54 & 55 Vict u. 67), s. 3 in 1893 avoid the necessity of nresentine to

(S. L. R. No. 2), and s. 4 in 1890 (53 & 54 King George IV. the report of the

Vict. 0. 51). These repeals do not revive Recorder of London at the conclusion

the former law ; vide ante, p. 5. of each session of the Old Bailey,

CHAP. VII,] Death. 207

shall be convicted of any felony, except murder, and shall by law be
excluded the benefit of clergy {f) in respect thereof, and the court before
which such offender shall be convicted shall be of opinion that, under
the particular circumstances of the case, such offender is a fit and proper
subject to be recommended for the royal mercy, it shall and maybe law-
ful for such court, if it shall think fit so to do, to direct the proper officer
then being present in court to require and ask, whereupon such officer
shall require and ask, if such offender hath or knoweth anything to say,
why judgment of death should not be recorded against such offender ;
and in case such offender shall not allege any matter or thing sufficient
in law to arrest or bar such judgment, the court shall and may and is
hereby authorised to abstain from pronouncing judgment of death upon
such offender, and, instead of pronouncing such judgment, to order the
same to be entered of record ; and thereupon such proper officer as afore-
said shall and may and is hereby authorised to enter judgment of death
on record against such offender, in the usual and accustomed form, and
in such and the same manner as is now used, and as if judgment of death
had actually been pronounced in open court against such offender by
the court before which such offender shall have been convicted.'

By sect. 2. ' A record of every such judgment, so entered as aforesaid,
shall have the like effect to all intents and purposes, and be followed
by all the same consequences, as if such judgment had actually been
pronounced in open court, and the offender had been reprieved by the
court' iff). The Act was applied to the Central Criminal Court in
1837 (?).

The exception of murder from the Act of 1823 was removed in 1836 (r).
But by sect. 2 of the Offences against the Person Act, 1861 (24 & 25 Vict,
c. 100), ' upon every conviction for murder the court shall pronounce
sentence of death ' (rr).

The mode of executing a sentence of death for murder is prescribed
by sects. 2, 3 of the Offences against the Person Act, 1861, and by the
Capital Punishment Amendment Act, 1868 (31 & 32 Vict. c. 24), and rules
made thereunder (s).

The Act of 1868 applies only to murder (sect. 2), and there are no
statutory provisions as to executing a sentence of death for other
capital felonies.

Denman, the Recorder, having been counsel after convictions for murder in the same

for Queen Caroline on her trial. The report manner, and the judge shall have the same

was abolished in 1837 (7 Will. IV. & 1 Vict. power in all respects as after convictions

c. 77, s. 1). Denman was Common Ser- for other capital offences.' In R. v. Hogg

jeant only in 1829, but a difficulty did then (2 M. & Rob. 380), Denman, C. J., held that

arise about his attending the King in the under this section sentence of death might

place of the Recorder. See Greville, be recorded on a conviction for murder.

Memoirs, vol. i. pp. 156, 246, 250. 6 & 7 Will. IV. o. 30, s. 2 was repealed in

(p) Ante, p. 205, note {V). 1861 (24 & 25 Vict. c. 95).

(jjp) Vide, -post, p. 253. The Act applies (rr) Vide ante, p. 205.

to England and Ireland, but not to Scot- (s) See Rules of 5 June, 1902, St. R. & 0.

land (s. 3). 1902, No. 444. The treatment of prisoners

(g) By 7 WiU. IV. and 1 Vict. o. 77, under sentence of death is regulated by the

s. 3 ; repealed as to murder in 1861 (24 & Local Prison Rules, 1899 (St. R. & 0. 1899,

25 Vict. 0. 95). No. 322), rr. 93-95, and where they are

(r) By 6 & 7 Will. IV. o. 30, s. 2 (B & I) appealing against their conviction by the

'sentence of death may be pronounced Prison Rules, 1908. Fide pos«, Bk. xii. c. iv.

208 Of Punishments. [book i.

Sect. II.— Exile, Banishment, and Expulsion.
At common law sentence of banishment or exile could not be iinposed
on a British subject by any Court («)• The nearest approach to it was
abjuration of the realm [u) by persons who had t^ken sanctuary

By the Eoman CathoHc Emancipation Act, 1829 (10 Geo IV. c 7),
s. 34, power is given to sentence to banishment from the United Kmgdom
for the term of their natural life persons who withm the United Kingdom
become Jesuits or brothers or members of any other male religious order,
community, or society of the Church of Eome, and by sects. 35, 36,
provisions are made for enforcing the sentence and for punishing by
transportation for Hfe persons found at large in the United Kingdom
after the end of three months from the sentence of banishment. These
provisions, though unrepealed, have never been put into force {v).

By sect. 15 of the Penal Servitude Act, 1853 (16 & 17 Vict. c. 99), it is
declared that transportation shall include banishment beyond the seas,
and by that Act the power to impose sentences of transportation was
limited to terms of fourteen years or upwards. By the Penal Servitude
Act, 1857 (w), transportation as the sentence of a court was abolished.

At the present time (1909), the banishment of a British subject is
effected only by means of terms imposed in granting a conditional pardon :
and the course of legislation in the United States and British possessions
has made it inexpedient to include such terms in pardons.

Expulsion of Aliens. — The right to exclude or expel aliens is by the
law of nations vested in the supreme power of every state, which, as a
necessary consequence has power to make and enforce laws for those
purposes {x).

In the case of aliens, the Aliens Act, 1905 (5 Edw. VII. c. 13), enacts :
Sect. 1. ' The Secretary of State may, if he thinks fit, make an order
(in this Act referred to as an expulsion order) requiring an alien to
leave the United Kingdom within a time fixed by the order, and
thereafter to remain out of the United Kingdom —
{a) if it is certified to him by any court (including a court of
summary jurisdiction) that the alien has been convicted by
that court of any felony, or misdemeanor, or other offence
for which the court has power to impose imprisonment with-
out the option of a fine, or of an offence under paragraph
twenty-two or twenty-three of section three hundred and
eighty-one of the Burgh Police (Scotland) Act, 1892 (55 & 56
Vict. c. 55), or of an offence as a prostitute under section
seventy-two of the Towns Improvement (Ireland) Act, 1854
(17 & 18 Vict. c. 103),or paragraph eleven of section fifty-four

(t) 2 Hawk. c. 33, s. 137. Countess of As to Victoria, Muserove v OliTin Taph^,,

Portland v. Prodgers [1683], 2 Vera. 104. Toy [18911 A C 72 I! fA m -J ??

(«) Abolished §1 1623 (21 Jac. I. o. 28). Adam, 1 Moore P C 460 T r%f

It was connected with sanctuary, and Commonwealth of AustraUa, s'ee Robtelmes

dropped on its abohtion. v. Brenan [1906], 4 Australin O T T? ^k

{V) R. V. Kennedy [1902], 86 L. T. 753. As to India, see Alt^ CaSma^',, "R v,^'

(w) Post, p. 210. Govt [18941 Ind L R i ^b "v^o^W

(X) Att..Gen. for Canada .. Cain [1906], And see ia,-, Wieri]/ S;^^ vrf Yv^ son'

A.C. 542, 546. As to Canada, see that case. p. 27. -nemew, vol. iv. 1890,

CHAP. VII.] Transportation and Penal Servitude. 209

of the Metropolitan Police Act, 1839, and that the court
recommend that an expulsion order should be made in his
case, either in addition to or in Heu of his sentence ; and
(6) if it is certified to him by a court of summary jurisdiction
after proceedings taken for the purpose within twelve months
after the alien has last entered the United Kingdom, in
accordance with rules of court made under section twenty-
nine of the Summary Jurisdiction Act, 1879 (42 & 43 Vict.
0. 49), that the alien —

(i) has, within three months from the time at which proceed-
ings for the certificate are commenced, been in receipt of
any such parochial rehef as disqualifies a person for the
parliamentary franchise, or been found wandering without
ostensible means of subsistence, or been living under
insanitary conditions due to over-crowding ; or
(ii) has entered the United Kingdom after the passing of
this Act, and has been sentenced («/) in a foreign country
with which there is an extradition treaty for a crime
not being an offence of a political character, which
is, as respects that country, an extradition crime
within the meaning of the Extradition Act, 1870 (z).
(2) If any alien in whose case an expulsion order has been made is at
any time found within the United Kingdom in contravention of
the order, he shall be guilty of an offence under this Act ' (a), i^
Sect. 4. — (1) ' Where an expulsion order is made in the case of any
alien, the Secretary of State may, if he thinks fit, pay the
whole or any part of the expenses of or incidental to the
departure from the United Kingdom, and maintenance until
departure, of the alien and his dependants (if any) . . .'(b).

Sect. III. — Transportation and Penal Servitude.

The punishment of transportation, first devised as a statutory
punishment temp. Elizabeth (c), was also used by way of conditional pardon
without statutory authority in respect of many crimes (d). In the
eighteenth century it became a statutory punishment for many felonies (e),

(y) It Is not stated whether this includes of expulsion, or to reconvey the alien and

a conviction par contumacs followed by a his dependents to the port of embarkation.

sentence ■passed, in absentia. (c) 39 EMz. o. 4 (rep.), which enacted that

{z) 33 & 34 Vict. c. 52, s. 3 (1). Ex parte rogues, vagabonds, &c., might, by the jus-

Castioni [1891], 1 Q.B. 149. Ex parte tioes in sessions, be banished out of the

Meiinier [1894], 2 Q.B. 415. Be Arton realm, and conveyed at the charges of the

[1896], 1 Q.B. 108. county to such parts beyond the seas as

(a) And liable to be dealt with as a rogue should be assigned by the privy council,

and a vagabond under s. 4 of the Vagrancy or otherwise adjudged perpetually to the

Act, 1824 (5 Geo. IV. c. 83). See 5 Edw. galleys of this realm ; and any rogue so

VII. c. 15, s. 7 (1). Provision is made banished, and returning again into the realm,

by Prison Rules of 1906 (St. R. & 0. 1906, was to be guilty of felony. See 6 Evans

No. 160) for measuring and photographing CoU. Stat. Pt. V. cl. xxv. (G) pp. 852, 853,

aliens imprisoned and ordered to be and as to the history of transportation,

expelled. 6 Law Quarterly Review, 388.

(6) In cases specified in subs. 2 of this (d) See the transportation rules, Kel. (J. )

section the master of the ship by which the 4, and 18 Car. II., c. 3, h. 2 (rep.),

alien arrived is liable to recoup the expenses (e) 4 Geo. I. c. 11 (rep.).

VOL, I. P

210 Of Punishments. [book i.

and some misdemeanors, e.g., perjury (/). The earlier legislation was
repealed and consolidated with amendments in the Transportation Act,
1824 (5 Geo. IV., c. 84). Owing to difficulties which arose as to inducing
the Australian Colonies (gr) to accept transported convicts and in finding
other places for transportation, certain prisons in England were sub-
stituted, in 1847, for the penal settlements in the colonies (10 & 11 Vict.
c. 67), and in 1853 sentences of transportation for less than fourteen
years were abolished (16 & 17 Vict. c. 99, s. 1). Penal servitude was
substituted for terms of transportation under fourteen years (sect. 2),
and the Courts were given a discretion to substitute penal servitude
under the Act for transportation for terms of fourteen years or over,
(sect. 3). The legislation applicable to persons under sentence of trans-
portation was so far as consistent with the Act of 1853, applied to
sentences of penal servitude (sect. 7).

In 1857 (20 & 21 Vict. c. 3), transportation under the sentence of a
Court was abolished (A), and penal servitude definitely substituted.
Certain portions of the Act of 1824 are specifically retained and applied
to persons sentenced to penal servitude {i).

By the Penal Servitude Act, 1853 (16 & 17 Vict. c. 99), penal servitude
was introduced in lieu of transportation in certain cases and under certain
regulations (/), without affecting the power to impose alternative
punishments (s. 14).

The alterations do not affect the prerogative of mercy, but the
Crown may grant pardons conditional on serving a term of penal servitude
(sects. 5, 13). The substitution of penal servitude for transportation does
not affect the power of Courts to impose other punishments additional to,
or in substitution for transportation (sect. 14). By the Children Act,
1908 (8 Edw. VII. c. 67), s. 102, a child of seven and under fourteen,
and a young person of fourteen and under sixteen, may not be sentenced
to penal servitude.

By sect. 6 of the Act of 1853, ' every person who under this Act
shall be sentenced or ordered to be kept in penal servitude may,
during the term of the sentence or order, be confined in any such prison
or place of confinement in any part of the United Kingdom, or in any
river, port, or harbour of the United Kingdom, in which persons under
sentence or order of transportation, may now by law be confined, or in
any other prison in the United Kingdom, or in any part of His Majesty's
dominions beyond the seas, or in any port or harbour thereof, as
one of His Majesty's principal secretaries of state may from time to
time direct; and such person may during such term be kept to hard
labour, and otherwise dealt with in all respects as persons sentenced to
transportation may now by law be dealt with while so confined ' {h).

By sect. 2 of the Penal Servitude Act, 1857 (20 .& 21 Vict. c. 3), which

(/) 2 Geo. II. 0. 25, s. 2, post, p. 479. (j) Ss. 1^ of this Act were superseded

(g) See Morton, British Colonies (1835), and repealed by the Act of 1857 (20 & 21

vol. IV. p. 440 ; Rusden, Hist. AustraUa Vict. c. 3). For s. 5 relating to oon-

(1883), ii. 534 : 6 St. Tr. (N. S.) 698». ditional pardons, vide post, p. 252.

(h) Power to send a convict out of the (k) 8. 7 applies to the Act of 1853 all

realm to serve a term of penal servitude Acts and provisions in Acts relating to

stiU remams. 20 & 21 Vict. c. 3, s. 3. transportations so far as consistent with

(i) bee post, p. 575, as to being at large the express provisions of the Acts of 1853.

during a sentence of ' penal servitude.' S. 8 applies the Act to Ireland.

CHAP, vii.] Imprisonment 211

is to be read as one Act with the Act of 1853 (l), ' after the commencement
of this Act (June 26, 1857), no person shall be sentenced to transportation ;
and any person who, if this Act and the said Act [of 1853] had not been
passed, might have been sentenced to transportation, shall be liable to
be sentenced to be kept in penal servitude for a term of the same duration
as the term of transportation to which such person would have been
liable if the said Act and this Act had not been passed ; and in every case
where at the discretion of the Court one of any two or more terms of
transportation might have been awarded, the Court shall have the like
discretion to award one of any two or more of the terms of penal servitude
which are hereby authorised to be awarded instead of such terms of
transportation ' . . . (m).

By sect. 6, ' Where in any enactment now in force the expression ' any
crime punishable with transportation,' or ' any crime punishable by
law with transportation,' or any expression of the like import, is used,
the enactment shall be construed and take effect as applicable also
to any crime punishable with penal servitude.'

By the Penal Servitude Act, 1891 (54 & 55 Vict. c. 69), s. 1 : ' (1)
Where under any enactment in force when this section comes into opera-
tion (August 5, 1891) a court has power to award a sentence of penal
servitude, the sentence may, at the discretion of the court, be for any
period not less than three years, and not exceeding either five years,
or any greater period authorised by the enactment ' (n).

' (3) Sect. 2 of the Penal Servitude Act, 1864 (27 & 28 Vict. c. 47)
is hereby repealed with respect to any sentence awarded after the date at
which this section comes into operation ' (o).

Under most of the sections of the Criminal Law Consolidation Acts
of 1861 the minimum term of penal servitude was three years.

The mode in which sentences of penal servitude are to be carried out
is regulated by prison rules, in which regard must be had to the sex,
age, health, industry, and conduct of the convicts (p).

Sect. IV. — Imprisonment.

Without Hard Labour. — Imprisonment without hard labour is
recognised by the common law as one of the lawful modes of punishing

(I) 16 & 17 Vict. c. 99. See 20 & 21 of 1861 a minimum term of penal servitude

Viet. c. 3, B. 7. was prescribed for only one offence (24 & 25

(m) The rest of this section was repealed Vict. c. 100, s. 61), which minimum has been
in 1892 (S. L. R.), as to all His Majesty's reduced to three years by the Act of 1891.
dominions. Ss. 3, 4 of the Act of 1857 (o) The repealed section made the mini-
apply the Transportation Acta to persons mum term of penal servitude seven years
under sentence of penal servitude imposed in the case of conviction on indictment of
in England or Ireland vide post, pp. 573 a crime or offence punishable by penal
et seq. servitude after a previous conviction of

(re) See R. v. Peters 1 Or. App. R. 141 as felony. Tor decisions thereon see R. v.
to the effect of this Act and Statute Law Deane, 2 Q.B.D. 305. R. v. Willis, 41 L. J.
revision repeals on the maximum sentence M. C. 104. R. v. Summers, L. R. 1 C. C. R.
of penal servitude. For subaeo. 2 see post, 182. S. 2 had already been repealed in
p. 212. Atone time the opinion prevailed 1879 (42 & 43 Vict. c. 55, a. 1) as to the
that for certain offences fixed terms of minimum term of penal servitude on a con-
transportation or imprisonment should be viction of an offence punishable by penal ser-
imposed. This policy was overridden in vitude after a previous conviction of felony.
1846 (9 & 10 Viet. o. 24, rep. 1892, S. L. R. ) (p) 61 & 02 Vict. c. 41, s. 4 : Convict Prison
as to certain cases of felony. In the Acts Rules, 1899 (St. R. & 0., 1899, No. 320).

P 2

212 Of Punishments. [book i.

misdemeanors. Successive terms of imprisonment may be imposed m
respect of several convictions at the same time for similar misdemeanors (g).

There are now two forms of imprisonment — with and without hard
labour (qq). A child of seven and under fourteen may not be sentenced
to imprisonment (8 Bdw. VII. c. 67, s. 102 (1) ) and a young person (of
fourteen and under sixteen) may not be sentenced to imprisonment for
an offence or committed to prison in default of payment of a fine,
damages, or costs, unless the Court certifies that he is too unruly or too
depraved for detention as a youthful offender (sect. 102 (3) ).

By the Penal Servitude Act, 1891 (54 & 55 Vict. c. 69), s. 1 (2), " Where
under any Act now (August 5, 1891) in force, or under any future Act, a
court is empowered or required to award a sentence of penal servitude, the
court may, in its discretion, unless such future Act otherwise requires,
award imprisonment for any term not exceeding two years, with or
without hard labour ' (r). This enactment apphes to all felonies not
punishable by death (rr), and to certain misdemeanors, e.g., perjury and
obtaining by false pretences, for which penal servitude may be imposed.
(Vide post, Book VII. Chapter I., Book X. Chapter XXVII.)

Hard Labour. — A sentence to imprisonment with hard labour (s) is
never obligatory upon any Court, and cannot lawfully be imposed except
under statutory authority. The more general statutory provisions on the
subject are that above stated, and the two enactments now to be noticed (t).

By the Hard Labour Act, 1822 (3 Geo. IV. c. 114), after reciting 53
Geo. III. c. 162, it is enacted, that ' whenever any person shall be con-
victed of any of the offences hereafter specified and set forth, that is to
say . . . any attempt to commit felony ; any riot ; . . . keeping a common
gaming-house, a common bawdy-house, or a common ill-governed and
disorderly house ; wilful and corrupt perjury, or of subornation of perjury ;
. . . ineachandeveryof the above cases, and whenever any person shall be
convicted of any or either of the aforesaid offences, it shall and may be
lawful for the court before which any such offender shall be convicted,
or which by law is authorised to pass sentence upon any such offender,
to award and order (if such court shall think fit) sentence of imprisonment
with hard labour for any term not exceeding the term for which such
court may now imprison for such offences, either in addition to or in lieu
of any other punishment which may be inflicted on any such offenders
by any law in force before the passing of this Act ; and every such
offender shall thereupon suffer such sentence, in such place, and for such
time as aforesaid, as such court shall think fit to direct ' {u).

(}) Castro V. E., 6 App. Cas. 229, post, Prison Rules made under s. 4 of the Prison

p- 248. (qq) Vide post, pp. 213, 214. Act, 1898 (61 & 62 Vict. c. 41), and varies

(r) This enactment superseded all statu- according to the age and sex of the prisoner,

tory provisions allowing imprisonment as In the case of males between sixteen and

an alternative to transportation or penal twenty-four, special rules have been made,

servitude, and most of such provisions have 1902, June 5 ; 1906, July 13.

now been repealed by Statute Law Re- (J) For the special provisions of particu-

vision Acts of 1892 and 1893. In particular, lar statutes authorising imprisonment with

7 & 8 Geo. IV. c. 28, s. 9, and 7 Will. IV. & hard labour see the title relating to the

1 Vict. c. 84, s. 3, printed in the 6th ed. of offence,

this work, vol. i. pp. 65, 82, are so repealed. («) The omitted portions of this enact-

(rr) Vide post, p. 246. ment have been superseded and repealed

(«) The mode in which a sentence of hard by other legislation and the Criminal Law

labour is to be carried out is determined by Consolidation Acts of 1861.

CHAP. VII.] Imprisonment. 213

By the Criminal Procedure Act, 1851 (14 & 15 Vict. c. 100), s. 29,
' whenever any person shall be convicted of any one of the ofEences follow-
ing, as an indictable misdemeanor ; that is to say, any cheat or fraud
punishable at common law ; any conspiracy to cheat or defraud, or to
extort money or goods, or falsely to accuse of any crime, or to obstruct,
prevent, pervert, or defeat the course of pubUc justice ; any escape or
rescue from lawful custody on a criminal charge ; any public and indecent
exposure of the person ...(«); any public selling, or exposing for public
sale or to public view of any obscene book, print, picture, or other indecent
exhibition ; it shall be lawful for the court to sentence the offender to
be imprisoned for any term now warranted by law, and also to be kept
to hard labour during the whole or any part of such term of imprisonment.'
By the Accessories and Abettors Act, 1861 (24 & 25 Vict. c. 94), s. 4 (w),
' Every accessory after the fact to any felony, except where it is otherwise
specially enacted (x), whether the same be a felony at common law or
by virtue of any Act passed or to be passed, shall be liable, at the discretion
of the court, to be imprisoned in the common gaol or house of correc-
tion (y), for any term not exceeding two years, with or without hard
labour ' . . . (z).

By the Prison Act, 1877 (40 & 41 Vict. c. 21), s. 40, ' The Prison
Commissioners shall see that any prisoner under sentence, inflicted upon
conviction of sedition or seditious libel, shall be treated as a misdemeanant
of the first division within the meaning of sect. 67 of the Prison Act, 1865
(28 & 29 Vict. c. 126), notwithstanding any statute, provision, or rule,
to the contrary.' By sect. 41 . ' Any person who shall be imprisoned under
any rule, order, or attachment for contempt of any court shall be in like
manner treated as a misdemeanant of the first division, within the
meaning of the said section of the said Act ■" (zz).

By the Prison Act, 1898 (61 & 62 Vict, c.^41), s. 6, (1) ' Prisoners
convicted of offences, either on indictment or otherwise, and not sentenced
to penal servitude or hard labour, shall be divided into three divisions.'

(2) ' Where a person is convicted by any court of an offence and is
sentenced to imprisonment without hard labour, the court may, if it
thinks fit, having regard to the nature of the offence and the antecedents
of the offender, direct that he be treated as an offender of the first division
or as an offender of the second division. If no direction is given by the
court, the offender shall, subject to the provisions of this section, be
treated as an offender of the third division ' (a).

(4) ' Any person imprisoned for default of entering into a recognisance,
or finding sureties for keeping the peace or for being of good behaviour,

{v) The words here omitted were re- Vict. c. 96, s. 98 ; c. 97, s. 56 ; o. 98, s. 49 ;

pealed in 1861 (24 & 25 Vict. o. 95, s. 1). c. 99, 8. 35 ; c. 100, o. 67.

(ui) Ante, p. 126. (zz) See Osborne v. Milman, 18 Q.B.D.

[x) e.g. accessories after the fact to 471.

murder (24 & 25 Vict. c. 100, s. 67), and (a) Subsec. 3 relates to imprisonment

receivers of stolen goods (24 & 25 Vict. without hard labour for default in paying

c. 96, ss. 91, 98). a debt, iucludjpg a civil debt recoverable

(y) Now in a local prison under the summarily, or in Ueu of distress for money

Prison Acts, 1865 to 1898. adjudged to be paid by a Court of summary

(z) Similar provisions are made in 24 & 25 jurisdiction.

214 Of Punishments. [book i.

shall be treated under the same rules as an offender of the second division,
unless he is a convicted prisoner, or unless the court direct that he be
treated as an offender of the first division.'

(5) ' Eeferences in sects. 40, 41, of the Prison Act, 1877 (b), to a misde-
meanant of the first division within the meaning of sect. 67 of the Prison
Act, 1865 (c), shall be construed as references to an offender of the first
division within the meaning of this section.'

Criminal Courts have not, in the opinion of the Secretary of State {d),
sufficiently kept in mind the power given to them to classify persons
sentenced to imprisonment without hard labour given by the enactment
above stated, nor the terms of the Prison Kules applicable to the three
divisions created by the enactment. It would seem that cases for
directing the offender to be put in the first division are not of common
occurrence, and that the reasons for placing an offender in the second
division are not so much the legal character of the offence (except in
cases where the imprisonment is ordered in default of paying a fme),
but the character and antecedents of the prisoner and the circumstances
under which the offence was committed, e.g., where the prisoner does
not belong to the criminal class and has not been generally of criminal
habits, and there is evidence of good character over a considerable
period, and it is clear that exceptional temptation or special provocation
has led to a merely temporary deviation from the path of honesty or to
an act of violence not in consonance with the natural disposition of the
prisoner (e). The state of the prisoner's health appears to be no
sufficient reason for placing him in the second division, because under
the prison administration prisoners of whatever class are excused from
discipline to which their state of health unfits them.

The mode in which sentences of imprisonment, with or without hard
labour, are to be carried out in prisons is regulated by prison rules, in
which regard is had to the sex, age, health, industry and conduct of the
prisoners (/), and the rules provide for enabling a prisoner sentenced to
imprisonment, whether by one sentence or a cumulative sentence, for a
period prescribed by the rules (g), to earn by special industry and good
conduct a remission of a portion of his imprisonment, and on his discharge
(in virtue of such remission) his sentence shall be deemed to have
expired (^).

In any sentence of imprisonment passed on or since January 1, 1899,
month means calendar month unless a contrary intention is expressed
by the Court; and a prisoner whose term of imprisonment expires on
Sunday, Christmas Day, or Good Friday, is to be discharged on the next
preceding day (i).

Solitary Confinement. — Under many statutes passed between 1827
and 1862, power was given to sentence a prisoner to solitary confinement.

(6) Ante, p. 43. (e) Home Office Circular, April, 1899.

(c) S. 67 is repealed by 61 & 62 Vict. o. 41, {/ ) 61 & 62 Vict. c. 41, s. 4. Local Prison
s. 15 (2), as from May 1, 1899, the date when Rules, (St. R. & 0. 1899, No. 322), r. 34.
the first Prison Rules made under 61 & {g) Rules dated Aug. 12, 1907, St. R. &
62 Vict. c. 41, s. 2 came into force. Prison 0., 1907, No. 617.

Rules, 1899 (St. R. & 0. 1899, No. 322). (h) 61 & 62 Vict. c. 41, s. 8. Local

(d) See Home Office Circulars to Justices Prison Rules, 1899, i. 36.

of April, 1899, and Deo. 31, 1906. (i) 61 & 62 Vict. o. 41, s. 12.

CHAP. VII.] Whipping. 215

Most, if not all, these enactments were repealed in 1893 (j), having
fallen out of use in consequence of the provisions of the Prison Acts
and Eules (k), under which solitary confinement is a matter of prison
regulation and not of judicial sentence.

Sect. V. — Whipping.

Whipping in public or in private was recognised by the common law
as an appropriate mode of punishing misdemeanants of either sex (l),
and in a few cases was made a statutory punishment for felony or
misdemeanor (11).

Females. — The whipping of females is absolutely forbidden by 1 Geo.
IV. c. 57, s. 1, and imprisonment with hard labour for not less than one
month nor more than six months is substituted for the punishment of
whipping in cases in which, prior to July 15, 1820, the punishment of
whipping had formed the whole or part of the judgment or sentence on a
female offender (sect. 2).

Adult Males. — At the present time the whipping of adult males is
authorised (i) by the Knackers Act, 1786 (26 Geo. III. c. 71), ss. 8, 9 ;
(ii) by the Vagrancy Act, 1824 (5 Geo. IV. c. 83), in the case of men sent to
quarter sessions to be dealt with as incorrigible rogues (m) ; (iii) by the
Garrotters Act, 1863 (26 & 27 Vict. c. 44), in the case of offences within
sect. 43 of the Larceny Act, 1861, and sect. 21 of the Offences against the
Person Act, 1861 ; (iv) in the case of males under sentence of penal
servitude, or convicted of felony, or sentenced to hard labour, who are
guilty of mutiny or incitement to mutiny, or of gross personal violence to
an officer or servant of the prison in which they are (w).

Youthful Males. — In the case of taking a reward for helping to the
discovery of stolen property, whipping can be inflicted on a male offender
who is under the age of eighteen (24 & 25 Vict. c. 96, s. 101). In many
other cases (o) this punishment can be inflicted on male offenders under
the age of sixteen, e.g., by sect. 4 of the Criminal Law Amendment Act, 1885
(48 & 49 Vict. c. 69), in case of offences against girls under thirteen. This
section expressly incorporates the provisions of 25 & 26 Vict. c. 18. It
would, therefore, seem that it is the intention of the legislature, where
a sentence of whipping is imposed on a boy over fourteen and under
sixteen years of age, that the instrument to be used should be a birch rod,
and the number of strokes should not be more than twenty-five.

(?) 56 & 57 Vict. c. 54 (S. L. B.). This (n) Prison Act, 1898 (61 & 62 Vict,

statute repealed in particular 7 & 8 Geo. IV. c. 41, s. 5). Tliis section provides for an

c. 28, s. 9 ; 7 Will. IV. & Vict. o. 90, s. 2 ; inquiry by the board of visitors or visiting

7 Will. IV. & 1 Vict. c. 91, s. 2 ; 24 & 25 committee of the prison, or other officer to

Vict. c. 96, s. 119 ; c. 97, s. 75 ; c. 98, s. 40 ; be appointed by the Home Secretary, and

and c. 100, s. 70. for submission to him for confirmation of

(k) See Local Prison Rules, 1899, c. 77. any order made for whipping. See Convict

(I) Vide Pollock and Maitland, Hist. Prison Eules, 1899, rr. 83, 84, 85 : Local

Eng. Law, ii. 517, 542. Prison Rules, 1899, rr. 89, 90, 91. In

(K) 2 Hawk. c. 48, s. 14. military and naval prisons corporal punish-

(m) See s. 10. The power appears to ment is abolished,
extend to offences created by subsequent (o) Chiefly relating to offences against

Vagrancy Acts, including that of 1898 (61 property. See the enactments under the

& 62 Vict. 0. 39), as to men living on particular titles,
the earnings of prostitution.

216 Of Punishments. [book i.

Regulations as to Whipping. — Each of the Criminal Law Consolidation
Acts of 1861 (24 & 25 Vict. c. 96, s. 119; c. 97, s. 75; c. 100, s. 70),
contains the following clause ; —

' Whenever whipping may be awarded for any indictable offence
under this Act, the Court may sentence the offender to be once privately
whipped ; and the number of strokes, and the instrument with which they
shall he inflicted, shall he specified hy the Court in the sentence.''

These enactments do not prescribe the instrument or limit the
number of strokes.

By the "Whipping Act, 1862 (25 & 26 Vict. c. 18), s. 1, where whipping
is ordered by a Court of Summary Jurisdiction (in England or Ireland)
the order sentence or conviction must specify the number of strokes to
be given and the instrument to be used ; and in the case of an offender
under fourteen years of age, the instrument is to be a birch rod, and the
number of strokes is not to exceed twelve. By sect. 2, ' No offender
shall be whipped more than once for the same offence.'

The Garrotters Act, 1863 (26 & 27 Vict. c. 44), is as foUows :—

• Whereas by sect. 43 of the Larceny Act, 1861 (24 & 25 Vict. c. 96),
it is provided that " whosoever shall, being armed with any offensive
weapon or instrument, rob or assault with intent to rob any person, or
shall together with one or more other person or persons rob or assault
with intent to rob any person, or shall rob any person, and at the time
of or immediately before or immediately after such robbery shall wound,
beat, strike, or use any other personal violence to any person ; " and
by sect. 21 of the Offences against the Person Act, 1861 (24 & 25
Vict. c. 100), that " whosoever shall by any means attempt to choke,
suffocate, or strangle any person, or by any means calculated to choke,
suffocate, or strangle, attempt to render any person insensible, im-
conscious, or incapable of resistance, with intent in any of such cases
thereby to enable himself or any other person to commit, or with intent
in any of such cases to assist any other person in committing, any indict-
able offence, shall be guilty of felony, and being convicted thereof, shall
be liable, at the discretion of the Court, to be kept in penal servitude for
Hfe, or for any term not less than three years, or to be imprisoned for any
term not exceeding two years, with or without hard labour, and with or
without sohtary confinement " ; and whereas the punishment awarded
by the said section is insufficient to deter from crimes of violence : '

BE IT ENACTED aS foUoWS :

1. ' Where any person is convicted of a crime under either of the said
sections, the Court before whom he is convicted may, in addition to the
punishment awarded by the said sections or any part thereof, direct
that the offender, if a male, be once, twice, or thrice privately whipped,
subject to the following provisions :

(1) That in the case of an offender whose age does not exceed sixteen

years the number of strokes at each such whipping do not exceed
twenty-five, and the instrument used shall be a birch rod :

(2) That in the case of any other male offender the number of strokes

do not exceed fifty at each such whipping :

(3) That in each case the Court in its sentence shall specify the number

of strokes to be inflicted and the instrument to be used :

CHAP, vii.] Fine. 217

Provided that in no case shall such whipping take place after the expira-
tion of six months from the passing of the sentence ; provided also, that
every such whipping to be inflicted on any person sentenced to penal
servitude shall be inflicted on him before he shall be removed to
a convict prison with a view to his undergoing his sentence of penal
servitude (oo).'

The Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), s. 10
as amended by s. 128 (1) of the ChHdren Act, 1908 (8 Edw. VII.
c. 67), limits the whipping to six strokes of a birch rod in the case of a
male child between seven and fourteen. Under this Act the whipping
is private, and is inflicted by a police constable in the presence of a police
inspector or other ofiicer above the rank of a constable, and, if desired, of
the parent or guardian of the child. The Children Act, 1908, does not
add to or take away from the list of offences for which youthful offenders
may be whipped. (See sect. 107.)

Sect. VI. — Fine.

On conviction of any misdemeanor the Court may impose a fine in
addition to or in substitution for any other lawful punishment, unless a
statute relating to the offence otherwise provides. The amount of the
fine (sometimes in the earlier statutes called a ransom) is in the discretion
of the Court (p), unless a limit is fixed by statute (q).

Each of the Consolidation Acts of 1861, (24 & 25 Vict. c. 96, s. 117 ;
c. 97, s. 73 ; c. 98, s. 51 ; c. 99, s. 38, and c. 100, s. 71) contains a provision
that 'Wherever any person shall be convicted of any indictable mis-
demeanor punishable (r) under this Act, the Court may, if it shall think
fit, in addition to or in lieu of any of the punishments by this Act
authorised, fine the offender.' . . .

A fine cannot at common law be imposed on conviction of felony.
By sect. 5 of the Offences Against the Person Act, 1861 (24 & 25 Vict.
c. 100), the Court may sentence a person convicted of manslaughter ' to
pay such fine as the Court shall award, in addition to or without any
such other discretionary punishment as aforesaid (rr).'

The fine imposed is levied as a Crown debt of record (s), under the
Levy of Fines Acts, 1822 and 1823 (t), or enforced by imprisonment
(without hard labour) until it is paid. The Courts have no power to
remit or mitigate a fine when once duly recorded, and applications for
remission are made to the Treasury (m). It used to be said that a fine

{oo) An appeal lies against a sentence of offences at common law for which the Acts

whipping passed on an incorrigible rogue, prescribe statutory punishments,

or on conviction or indictment, vide R. v, {rr) i.e., inlieu of imprisonment, w&a»(e,

Anthony, 1 Or. App. R. 22, and post, vol. ii. p. 212.

p. 2011. (s) R. V. WooU, 2 B. & Aid. 609 ; 21 E.

(p) 1 Chit. Cr. L. 710. Subject to the R. 412.

provision of the Bill of Rights, 1 Will. & M. (t) 3 Geo. IV. c. 46 ; 4 Geo. IV. o. 37, as

Sess. 2, 0. 2, ' That excessive bail ought not amended with reference to Quarter Sessions

to be required nor excessive fines imposed.' by 12 & 13 Vict. <;. 45, s. 17, and 16 & 17

Cf. Magna Charta, 25 Edw. I. c. 14. Vict. c. 30, s. 2.

(q) The particular statutes fixing such («) In the case of imprisonment for non-
limits are given under the title relating to payment of fines imposed by a Court of
the particular offence. summary jurisdiction, the term of imprison-

(r) Many offences within the Acts are ment is reducible by part payment of the

218 Of Punishments. [book i.

could not in general be imposed on a married woman, as she had nothing
to pay with {v). But since the passing of the Married Women's Property
Act, 1882 (45 & 46 Vict. c. 75), this theory has little or no force.

By the Children Act, 1908, s. 99, (1) ' Where a child or young person
is charged before any Court with any offence for the commission of which
a fine, damages, or costs may be imposed, and the Court is of opinion
that the case would be best met by the imposition of a fine, damages, or
costs, whether with or without any other punishment, the Court may in
any case, and shall, if the offender is a child, order that the fine, damages,
or costs awarded be paid by the parent or guardian {x) of the child or
young person, instead of by the child or young person, unless the Court
is satisfied that the parent or guardian cannot be found or that he has not
conduced to the commission of the offence by neglecting to exercise due
care of the child or young person.

(2) Where a child or young person is charged with any offence, the Court
may order his parent or guardian ' to ' give security for his good behaviour.

(3) Where a Court of Summary Jurisdiction thinks that a charge
against a child or young person is proved, the Court may make an order
on the parent or guardian under this section for the payment of damages
or costs or requiring him to give security for good behaviour without
proceeding to the conviction of the child or young person.

(4) An order under this section may be made against a parent or
guardian who, having been required to attend, has failed to do so, but,
save as aforesaid, no such order shall be made without giving the parent
or guardian an opportunity of being heard.

(5) Any sums imposed and ordered to be paid by a parent or guardian
under this section, or on forfeiture of any such security as aforesaid, may
be recovered from him by distress or imprisonment in like manner as if
the order had been made on the conviction of the parent or guardian
of the offence with which the child or young person was charged.

(6) A parent or guardian may appeal against an order under this section
(a) if made by a Court of Summary Jurisdiction to a Court of Quarter

Sessions ; and
{})) if made by a Court of Assize or a Court of Quarter Sessions to the
Court of Criminal Appeal in accordance with the Criminal Appeal
Act, 1907 {xx), as if the parent or guardian against whom the
order was made had been convicted on indictment, and the order
were a sentence passed on his conviction.'

Sect. VII. — Recognisances and Sureties to keep the Peace
OR FOR Good Behaviour.

In the case of a misdemeanor, the Courts have, at common law, in
addition to any other lawful punishment imposed, the power to require
the offender on conviction to enter into recognisances and to find sureties,

fine by the ratio borne by the sum paid to P. C. u. 25, a. 3 ; R. v. Thomas, cas. temv.

the term of imprisonment imposed (61 & Hardw. 278.

62 Vict. c. 41, s. 9). (x) The attendance of the parent, &c.,

(v) See R. u. Loveden, 8 T. R. 615, may be required under s. 98.

618 id). As to earlier practice see 2 Hawk. I^xx) Post, vo]. ii. p. 2009.

CHAP. VII.] Probation of Offenders. 219

both or either, to keep the peace and be of good behaviour {y). This
power appHes even to married women (z). Each of the ConsoHdation
Acts of 1861 (24 & 25 Vict. c. 96, s. 117 ; c. 97, s. 73 ; c. 98, s. 51 ; c. 99,
s. 38 ; and c. 100, s. 71), contains the following clause : —

' Whenever any person shall be convicted of any indictable mis-
demeanor punishable under this Act, the Court may, if it shall think
fit, in addition to, or in lieu of any of the punishments by this Act author-
ised, . . . require him to enter into his own recognisances, and to find
sureties, both or either, for keeping the peace and being of good behaviour,
and in case of any felony punishable under this Act (a), the Court may,
if it shall think fit, require the offender to enter into his own recognisances,
and to find sureties, both or either, for keeping the peace in addition to
any punishment by this Act authorised : Provided that no person shall
be imprisoned under this clause for not finding sureties for any period
exceeding one year ' (as to such imprisonment vide 61 & 62 Vict. c. 41,
s. 6 (4), ante, p. 213).

Sect. VIII. — Probation of Offenders.
A. Release of Convicts on Licence.

Provision is made by the Penal Servitude Acts for release, on licence
or ticket of leave, of persons sentenced to penal servitude (&).

By the Penal Servitude Act, 1853 (16 & 17 Vict. c. 99), s. 9, ' It
shall be lawful for His Majesty, by an order in writing under the hand
and seal of one of His Majesty's principal secretaries of state, to grant
to any convict now under sentence of transportation, or who may here-
after be sentenced to transportation, or to any punishment substituted
for transportation by this Act, a licence to be at large (c) in the United
Kingdom and the Channel Islands, or in such part thereof respectively
as in such licence shall be expressed, during such portion of his or her
term of transportation or imprisonment, and upon such conditions in
all respects as to His Majesty shall seem fit; and it shall be lawful for
His Majesty to revoke or alter such licence by a like order at His Majesty's
pleasure.'

Sect. 10. ' So long as such licence shall continue in force and unre-
voked, such convict shall not be liable to be imprisoned or transported

(y) R. V. Dunn, 12 Q.B. 1026. R. v. enter into a recognisance to the same extent

Hart, 30 St. Tr. 1131: and see Wise w. Dunn- 3,a a, femme sole.

ing [1902], 1 K.B. 167. As to the differences (a) The Offences Against the Person Act

between recognisances for good behaviour 1861 (24 & 25 Vict. c. 100), here adds

and recognisances to keep the peace, see ' otherwise than with death ' (s. 72).

Dalton, c. 123 ; 7 Mod. 29 ; 1 Hawk. 483, (b) These provisions take the place of

486 ; Burn's Justice (30th ed.), vol. v. 763. provisions in the Transportation Acts for

(z) R. V. Thomas, cas. K.B. temp. assigning convicts as servants or otherwise

Hardw. 278. It used to be held that a letting out their services. The practice

married woman could not be bound by continues in some of the United States

recognisance. Lee v. Lady Baltinglas, underthename of peonage: t«iiepo«J, p. 277,

Styles, 475. Bennet v. Watson, 3 M. & S. 1. note (»).

Elsy V. Mawdit, Styles, 226. The reason (c) Usually styled a, ticket of leave,

alleged was that the recognisance of a Such tickets were given in Australia to

married woman could not be estreated. transported convicts. See Martin, British

1 Chit. Cr. L. 100. But a woman married Colonies (1835), vol. iv. p. 444
since Dec. 31, 1882 appears to be able to

220 Of Punishments. [book i.

by reason of his or her sentence, but shall be allowed to go and remain
at large according to the term of such licence.'

Sect. 11. If it shaU please His Majesty to revoke any such licence, a
secretary of state by warrant under his hand, may signify to any one of the
police magistrates of the metropolis that such licence has been revoked,
and may require such magistrate to issue his warrant for the apprehension
of the convict, and such magistrate shall issue his warrant accordingly,
and such warrant shall and may be executed by the^ constable to whom
the same shall be delivered for that purpose in any part of the United
Kingdom, or in Jersey, Guernsey, Alderney, or Sark, and the convict
when apprehended shall be brought before the magistrate who issued the
warrant, or some other magistrate of the same Court ; and he shall
thereupon make out his warrant for the recommitment of the convict
[to the prison from which he was released] {d), and such convict shall
be so recommitted accordingly and shall thereupon be remitted to his
or her original sentence, and shall imdergo the residue thereof as if no
such licence had been granted.

By the Penal Servitude Act, 1864 (27 & 28 Vict. c. 47), s. 4, ' a licence
granted under the said Penal Servitude Acts ' (of 1853 & 1857) ' may be
in the form set forth in Schedule (A.) to this Act annexed, and may be
written, printed, or lithographed. If any holder of a licence granted in
the form set forth in the said Schedule (A.) is convicted, either by the
verdict of a jury or upon his own confession, of any offence for which he
is indicted, his licence shall be forthwith forfeited'by virtue of such con-
viction (e). . . .

Sect. 8. Where any holder of any licence granted in the form set
forth in the said Schedule (A.) is convicted of an offence, punishable sum-
marily under this or any other Act, the justices, sheriff, sheriff-substitute,
or other magistrate convicting the prisoner, shall, without delay, forward
by post a certificate in the form given in Schedule (B.) to this Act annexed,
if in England or Scotland to one of his Majesty's principal secretaries of
state, or if in Ireland to the Lord Lieutenant ; and thereupon, the licence
of the said holder may be revoked in manner provided by the said Penal
Servitude Acts.'

Sect. 9. ' Where any licence granted in the form set forth in the
said Schedule (A.) is forfeited by a conviction [on indictment of any
offence] (/), or is revoked in pursuance of a summary conviction under
this Act or any other Act of Parliament, the person whose licence is
forfeited or revoked shall, after undergoing any other punishment to

(d) The words in brackets were expressly failure to produce the licence or for certain
repealed in 1875 (38 & 39 Vict. c. 66), having specided breaches of the conditions of the
been already virtually repealed by the licence.

Penal Servitude Act, 1857 (20 & 21 Vict. (/) The Court of trial has no option

c. 3), under s. 5 whereof ' such convict may under this section. E. v. King [1897] 1 Q B

be recommitted by the magistrate issuing 214. And it cannot order the subsequent

his warrant m that behalf either to the sentence to be served concurrently with the

pnson from which he was released by virtue remanet of the old uncompleted sentence

of his hcence or to any other prison in which E. U.Hamilton [1908], ICr.App R 87 E i;'

convicts under sentence of penal servitude Wilson, C. C. A., 24 June, 1909- ox after the

may be lawfully confined.' remaree*, R. u. Smith, c' C a" 24 June

(e) Eest of section rep. in 1875 (S. L. E.). 1909. As to cases within s. 9 see further
S, 5 imposes penalties on licence holders for 54 & 55 Vict. o. 69, a. 3 -post p 226

CHAP. VII.] Probation of Offenders. 221

which he may be sentenced for the ofience in consequence of which his
licence is forfeited or revoked, further undergo a term of penal servitude
equal to the portion of his term of penal servitude that remained un-
expired at the time of his licence being granted, and shall, for the purpose
of his undergoing such last mentioned punishment, be removed from
the prison of any county, borough, or place in which he may be confined,
to any prison in which convicts under sentence of penal servitude may
lawfuly be confined, by warrant under the hand and seal of any justice
of the peace of the said county, borough, or place, and shall be liable to
be there dealt with in all respects as if such term of penal servitude had
formed part of his original sentence ' (g).

Sect. 10 empowers His Majesty or the Lord Lieutenant of Ireland
to grant licences in any other form than that set forth in Schedule (A.)
and containing different conditions ; and such licences shall be revoc-
able at pleasure by the authority by which they were granted ; but a
breach of their conditions is not to subject any holder of a licence to
summary conviction {h).

By the Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), s. 3,
' any constable in any police district may, if authorised so to do in writing
by the chief officer of police of that district, without warrant take into
custody any convict who is the holder of a licence granted under the
Penal Servitude Acts, if it appears to such constable that such convict
is getting his livelihood by dishonest means, and may bring him before
a court of summary jurisdiction for adjudication {i). If it appears from
the facts proved before such court that there are reasonable grounds for
believing that the convict so brought before it is getting his livelihood
by dishonest means, such convict shall be deemed to be guilty of an offence
against this Act, and his licence shall be forfeited.'

By sect. 4, ' where in any licence granted under the Penal Servitude
Acts, any conditions different from or in addition to those contained in
Schedule A. of the Penal Servitude Act, 1864 (j) are inserted, the holder
of such licence, if he breaks any such conditions by an act that is not of
itself punishable, either upon indictment or upon summary conviction,
shall be deemed guilty of an oSence against this Act, and shall be liable to
imprisonment for any period not exceeding three months, with or without
hard labour. A copy of any conditions annexed to any licence granted
under the Penal Servitude Acts, other than the conditions contained
in Schedule A. of the Penal Servitude Act, 1864, shall be laid before both
Houses of Parliament within twenty- one days after the making thereof,
if Parliament be then sitting, or if not, then within fourteen days after
the commencement of the next session of Parliament.'

By sect. 5. ' every holder of a licence granted under the Penal Servitude
Acts who is at large in Great Britain or Ireland shall notify the place of

(g) The words in brackets were subati- applied also to a licence in any other form

tuted for the words ' of any indictable authorised by the section. 54 & 55 Vict,

offence,' in 1891 (54 & 55 Vict. o. 69, s. 3 (3)) c. 69, s. 5, post, p. 226.

and the form in Schedule A was amended (i) For further provisions see 54 & 55

by substituting ' on indictment of some Vict. c. 69, s. 2 (1), post, p. 225.

oflfenoe ' for ' of some indictable offence.' (j) As amended in 1891, 54 & 55 Vict.

(h) The provisions of this section as to c. 69, s. 3, post, p. 226.
licences in the form in Schedule A. are

222 Of Punishments. [book 1.

his residence to the chief officer of police of the district in which his
residence is situated, and shall, whenever he changes such residence within
the same police district, notify such change to the chief officer of police
of that district [and whenever he is about to leave a police district he shall
notify such his intention to the chief officer of police of that district, stating
the place to which he is going, and, as far as is practicable, his address at
that place, and whenever he arrives in any police district he shall forthwith
notify his place of residence to the chief officer of police of such last-mentioned
district] (Jc) ; moreover, every male holder of such a licence as aforesaid
shall, once in each month, report himself at such time as may be pre-
scribed by the chief officer of police of the district in which such holder
may be, either to such chief officer himself, or to such other person as that
officer may direct, and such report may, according as such chief officer
directs, be required to be made personally or by letter (Z).

[// any person to whom this section applies fails to comply with any of
the requisitions of this section, he shall in any such case, be guilty of an
offence against this Act (11), unless he proves to the satisfaction of the Court
before whom he is tried, either that being on a journey he tarried no longer
in the place, in respect of which he is charged with failing to notify his place
of residence, than was reasonably necessary, or that otherwise he did his best
to act in conformity with the law ; and- on conviction of such offence, it shall
be lawful for the Court in its discretion either to forfeit his licence or to sentence
him to imprisonment, with or without, hard labour, for a term not exceeding
one year (m) ].

Sect. 6, (sub-sects. 1-5) provides for keeping registers of all persons
convicted of crime in the United Kingdom, and for making periodical

(Ic) The words in brackets were substi- dividual person. Any appointment, diree-

tuted by 54 & 55 Vict. c. 69, s. 4, for the tion, or authority purporting to be signed

original words of the section. by the chief officer of police, and to have

(I) By the Prevention of Crime Act, been made or given for the purposes of this

1879 (42 & 43 Vict. o. 55), s. 2, ' Any holder Act or of ss. 5 & 8 of the Prevention of

of a licence required, under s. 5, and any Crimes Act, 1871, or one of them, shall be

person subject to the supervision of the evidence until the contrary is proved, that

pohce required, under s. 8 of the Prevention the appointment, direction, or authority

of Crimes Act, 1871 (34 & 35 Vict. u. 112), thereby made or given by the chief officer

to notify his residence or any change of his of police ; and evidence that it appears

residence to a chief officer of police, shall from the records kept by authority of the

comply with such requirement by person- chief officer of police that a person required

ally presenting himself and declaring his as above mentioned to notify his residence

place of residence to the constable or person or change of residence, or to make a report,

who at the time when such notification is has failed to comply with such requirement,

made is in charge of the poUce station or shall be primd facie evidence that the per-

offioe of which notice has been given to such son has not compUed with such require-

holder or person, as the place for receiving ment ; but if the person charged alleges

his notification, or if no such notice has that he made such notification or report to

been given, in charge of the chief office of any particular person or at any particular

such chief officer of police.' time, the Court shall require the attendance

' The power of the chief officer of a pohce of such persons as may be necessary to

district to direct that the reports required prove the truth or falsehood of such aUega-

by ss. 5 & 8 of the Prevention of Crimes Act tion.'

1871, to be made by holders of licences and {11)8. 17 states how offences against

persons subject to the supervision of the the Act may be prosecuted before a Court of

poUoe, shall be made to some other person, summary jurisdiction,

shall extend to authorise him to direct such (to) The words in brackets were substi-

reports to be made to the constable or tuted by 54 & 55 Vict. c. 69, b. 4, for the

person in charge of any particular pohce original words of the section in the Act of

station or office without naming the in- 1871.

CHAP. VII.] Probation of Offenders. 223

returns of the persons convicted of crime, who came into the custody of
the gaoler or governor of any prison {mm).

By sect. 8 of the Penal Servitude Act, 1891 (54 & 55 Vict. c. 69) power
is given to make regulations as to the measuring and photographing ' of
all prisoners who may, for the time being, be confined in any prison ' (w).
The regulations are made in England by the Home Secretary, or in
Scotland by 1 the Secretary for Scotland, and in Ireland by the Lord
Lieutenant (o). The regulations must be laid before Parliament as
soon as practicable after they are made (p).

Special Offences by Persons twice convicted of Crime. — By the Preven-
tion of Crimes Act, 1871 (34 & 35 Vict. c. 112), s. 7 {ff) : Where any pei-son
is convicted on indictment of a crime (5), and a previous conviction of a
crime is proved against him, he shall, at any time within seven years
immediately after the expiration of the sentence passed on him for the
last of such crimes be guilty of an offence against this Act, and be liable
to imprisonment, with or without hard labour, for a term not exceeding
one year, under the following circumstances, or any of them : —

First. If, on his being charged by a constable with getting his live-
lihood by dishonest means, and being brought before a Court of Summary
Jurisdiction, it appears to such Court that there are reasonable grounds
for believing that the person so charged is getting his livelihood by dis-
honest means : or

Secondly. If, on being charged with any offence punishable on indict-
ment or summary conviction, and on being required by a Court of Sum-
mary Jurisdiction to give his name and address, he refuses to do so, or
gives a false name or a false address : or.

Thirdly. If he is found in any place, whether public or private,
under such circumstances as to satisfy the Court before whom he is brought
that he was about to commit or to aid in the commission of any offence
punishable on indictment or summary conviction, or was waiting for an
opportunity to commit or aid in the commission of any offence punish-
able on indictment or summary conviction : or

Fourthly. If he is found in or upon any dwelling-house, or any build-
ing, yard, or premises, being parcel of or attached to such dwelling-house,
or in or upon any shop, warehouse, counting-house, or other place of
business, or in any garden, orchard, pleasure ground, or nursery ground,
or in any building or erection in any garden, orchard, pleasure ground,
or nursery ground, without being able to account to the satisfaction of

(mm) See also 39 & 40 Vict. c. 23, s. 2. as dealt with photographing was repealed.

(») In the Act of 1871 the power was (o) 34 & 35 Vict. o. 112, s. 6 (6). 54 & 55

limited to photographing, and to aU Vict. c. 69, s. 9.

prisoners convicted of crime as defined in (p) The regulations of 1877 & 1896 now
s. 20 of that Act, post, p. 224, note (s). in force are printed in Statutory Rules &
By the Prevention of Crimes Amendment Orders Revised (ed. 1904), tit. ' Prisons,
Act, 1876 (39 & 40 Vict. c. 23), s. 2, England, Scotland, and Ireland.' Regula-
power was given to prescribe the classes tions as to measuring and photographing
of convicted prisoners to which alone the aliens imprisoned and ordered to be ex-
rules as to registry and photographing peUed were made in February, 1906 (St.
should be applied. The changes made by R. & 0.. 190c, No. 160).
the Act of 1891 authorise measurement as {'pp) Extended by 54 & 55 Vict, c, s. 6.
well as photography, and cover aU prisoners post, p. 226.

whether convicted or not, and in 1893 (q) See the interpretation clause, a. 20,

(S. L. R.), so much of s. 6 of the Act of 1871 post, p. 224, note (s).

224 Of Punishments. [book i.

the Court before whom he is brought for his being found on such
premises.

Any person charged with being guUty of any offence against this
Act mentioned in this section may be taken into custody as follows ;
(that is to say,)

In the case of any such offence against this Act as is first in this section
mentioned, by any constable without warrant, if such constable is author-
ised so to do by the chief officer of police of his district ;

In the case of any such offence against this Act as is thirdly in this
section mentioned, by any constable without warrant, although such
constable is not specially authorised to take him into custody ;

Also, where any person is charged with being guUty of an offence
against this Act fourthly in this section mentioned, he may, without
warrant, be apprehended by any constable, or by the owner or occupier of
the property on which he is foimd, or by the servants of the owner or
occupier, or by any other person authorised by the owner or occupier, and
maybe detained untU he can be delivered into the custody of a constable.'

B. Police Supervision.

Police Supervision. — By sect. 8 (r), 'where any person is convicted
on indictment of a crime (s), and a previous conviction of a crime is proved
against him, the Court having cognisance of such indictment may, in
addition to any other punishment which it may award to him, direct
that he is to be subject to the supervision of the poHce for a period of
seven years, or of such less period as the Court may direct, commencing
immediately after the expiration of the sentence passed on him for the
last of such crimes. Every person subject to the supervision of the police
who is at large in Great Britain or Ireland shall notify the place of his
residence to the chief officer of police of the district which in his residence
is situated, and shaU whenever he changes such residence within the same
police district notify such change to the chief officer of pohce of that
district, and whenever he is about to leave a police district he shall notify
such his intention to the chief officer of police of that district stating the place
to which he is going, and also if required and so far as practicable his address
at that place, and whenever he arrives in any police district he shall
notify his place of residence to the chief officer of police of such last-
mentioned district (t) ; moreover, every person subject to the super-
vision of the police, if a male, shall once in each month report himself at
such time as may be prescribed by the chief officer of police of the district
in which such holder may be, either to such chief officer himself or to
such other person as that officer may direct, and such report may,

(r) Orders made under thia section render crown, any theft which, in respect of any
the supervisee subject to the provisions of aggravation, or of the amount in value of
42 & 43 Vict., c. 55, s. 2, ante, p. 222, note (Z). the money, goods or thing stolen, may be

(«) By s. 20, the expression ' crime ' punished with penal servitude, any forgery,
means, in England and Ireland, any felony, and any uttering of any forged writing,
or the ofifence of uttering false or counter- falsehood, fraud and wilful imposition,
feit gold or silver coin, or the offence of uttering base coin, or the possession of such
obtaining goods or money by false pre- coin with intent to utter the same,
tences, or the offence of conspiracy to («) Words in italics substituted for former

defraud, or any misdemeanor under the s. 58 words by 64 & 55 Vict., c. 69, s. 4(1); as
of the Larceny Act, 1861 (24 & 25 Vict., c. to notification see 42 & 43 Vict., c. 55, s. 2,
96) : and in Scotland, any of the pleas of the ante, p. 222, note {I).

CHAP. VII.] Police Supervision. 225

according as such chief officer directs, be made personally or by-
letter' (u).

The requirements of sect. 8 may be remitted by a secretary of state,
either generally or in the case of an individual supervisee (v).

Sect. 8 further provides that ' [If any person to whom this section
applies fails to comply with any of the requisitions of this section, he
shall, in any such case, be guilty of an offence against this Act, unless
he proves to the satisfaction of the Court before whom he is tried,
either that being on a journey he tarried no longer in the place, in
respect of which he is charged with failing to notify his place of resi-
dence, than was reasonably necessary, or that otherwise he did his best
to act in conformity with the law ; and on conviction of such offence it
shall be lawful for the Court in its discretion either to forfeit his licence,
or to sentence him to imprisonment with or without hard labour for a
term not exceeding one year] ' (w).

The accused may elect to be tried on indictment (42 & 43 Vict. c. 49,
s. 17) (x). If he does the provisions of sect. 9 of the Act of 1871 (y) as to
the indictment do not apply (2).

Sect. 15 provides for the amendment of sect. 4 of the Vagrancy
Act, 1824, 5 Geo. IV. c. 83, by substituting for the words ' highway or
place adjacent ' the words ' or any highway or any place adjacent to a
street or highway ' ; and provides also that, ' in proving the intent to
commit a felony it shall not be necessary to shew that the person
suspected was guilty of any particular act or acts tending to shew his
purpose or intent, and he may be convicted if from the circumstances of
the case and from his known character as proved to the justice of the
peace or Court before whom or which he is brought, it appears to such
justice or Court that his intent was to commit a felony . . . '

By the Penal Servitude Act, 1891 (54 & 55 Vict. c. 69), s. 2— (1)
'Any constable may take into custody without warrant any holder
of a licence under the Penal Servitude Acts, or any person under the
supervision of the police in pursuance of the Prevention of Crimes Act,
1871, whom he reasonably suspects of having committed any offence,
and may take him before a Court of Summary Jurisdiction to be dealt
with according to law.

(2) Any convict maybe convicted before a Court of Summary Juris-
diction of an offence against sect. 3 of the Prevention of Crimes Act,
1871 (ante, p. 221), although he was brought before the Court on some
other charge, or not in manner provided by that section.'

Sect. 3. — (1) ' Where an offender is, under sect. 9 (a) of the Penal Servi-
tude Act, 1864, undergoing, or liable to undergo, a term of penal servitude
in consequence of the forfeiture or revocation of a licence granted in
pursuance of the Penal Servitude Acts, His Majesty may grant a licence

(u) Persons failing to comply with the (w) Words in brackets substituted by 54

section render the supervisee liable to sum- & 55 Vict. c. 69, s. 4, for the original terms

mary conviction (subject to his election to of s. 8.

be tired on indictment (42 & 43 Vict. c. 49, (x) Ante, p. 17.

8. 17), to imprisonment with or without (y) Post, Bk. xii. c. ii.

hard labour for not over one year. 54 & (z) B. v. Penfold [1902], 1 K.B. 547.

55 Vict. c. 69, s. 4 (1). (a) Ante, p. 220.

(v) 54 & 55 Vict. c. 69, s. 4 (2).

VOL. I. Q

226 Of Punishments. [book i.

to the oSender in like manner as if the forfeiture or revocation of the
former licence were a sentence of penal servitude which the offender is
liable to undergo.

(2) Where a person is sentenced on any conviction to a term of penal
servitude, and by virtue of the same conviction his licence is forfeited,
the term for which he is sentenced, together with the term which he is
required further to undergo under the said section, shall, for all purposes
of the Penal Servitude Acts relating to licences, be deemed to be one
term of penal servitude, and those Acts shall apply as if, on conviction
of the offence, the offender had been sentenced to the combined term ' (aa).

By sect. 4 (1) sects. 5 and 8 of the Prevention of Crimes Act, 1871 {&),
and sect. 2 of the Prevention of Crimes Act, 1879 (c) (which recites and
refers to those sections), are modified as shewn above, pp. 222, 224, 225.

By sub-sect. (2) ' His Maj esty may, by order under the hand of a Secre-
tary of State, remit any of the requirements of sects. 5 and 8 of the
Prevention of Crimes Act, 1871, either generally or in the case of any
holder of a licence or person subject to the supervision of the poHce.'

By sect. 5 ' The provisions of the Penal Servitude Act, 1864 (cZ), apply-
ing to a licence in the form set forth in Schedule A. to that Act, shall
apply also to a licence in any other form for the time being authorised
by sect. 10 of that Act.'

By sect. 6 ' A person who has been convicted on indictment of a crime
within the meaning of the Prevention of Crimes Act, 1871 {dd), and against
whom a previous conviction of such a crime is proved, shall,

(o) if the second sentence is to a term of imprisonment, then at any
time within seven years after the expiration of the sentence ; and

(6) if the second sentence is to a term of penal servitude, then whilst
at large on licence under that sentence, and also at any time within seven
years after the expiration of the sentence, be guilty of an offence against
the Prevention of Crimes Act, 1871, under the circumstances stated in
sect. 7 of that Act {ante, p. 223), or any of them, and may be taken into
custody in manner provided by that section.'

By sect. 7 ' Sect. 4 of the Vagrancy Act, 1824 (5 Geo. IV. c. 83), as
amended by sect. 15 of the Prevention of Crimes Act, 1871 (e), shall be
read and construed as if the provisions applying to suspected persons and
reputed thieves frequenting (/) the places and with the intent therein
described, appHed also to every suspected person or reputed thief
loitering about or in any of the said places and with the said intent.'

Youthful Offenders.— Youthful offenders sent to certified industrial
or reformatory schools, or subject to detention pursuant to the directions of
the Secretary of State, may be released on Hcence under the Children Act,
1908 (/). The licence is revocable on breach of the conditions on which
it was granted.

(aa) A3 to sub-s. 3 o£ s. 3, vide ante, the offence must be committed and the

P- tf\"°** ^^'- „, „„. mode of proving intent to commit felony.

(6) Ante, pp. 221, 224. (^f) gee Clark v. R., 14 Q B D 92

cM»te, p 222 iiote (Z). (ff) g Edw. VII. c. 67, 's. " 67 (po*^

^u'Jt 90 ' ? ' ^9,1 , ,^ P- ■^^^'' (i'i<i"=t"^l schools and reforma-

«) S. 20, ante p. 224 note (s). tones), s. 105 (places of detention under

(e) AnU, p. 225. As to the place where the direction of the Secretary of State).

CHAP. VII.] Probation of Offenders. 227

Habitual Criminals. — For the provisions as to conditional release of
habitual criminals, vide post, pp. 243 et seq.

C. The Probation of Offenders Act, 1907.

At common law the Courts have power, except in capital cases,
instead of inflicting immediate punishment, to release an offender on
his entering into a recognizance, with or without sureties, to come up for
judgment when called on, and in the meantime to keep the peace or
be of good behaviour (g). Statutory provision was made in 1887 (h)
for the release on probation of certain classes of offenders. Completer
provision is made by the Probation of Offenders Act, 1907 (7 Edw. VII.
c. 17) (i), which came into operation on January 1, 1908 (ii).

Conditional Release. — Sect. 1. — (1) 'Where any person is charged before
a Court of Summary Jurisdiction with an offence punishable by such
Court, and the Court thinks that the charge is proved, but is of opinion
that, having regard to the character, antecedents, age, health, or mental
condition of the person charged, or to the trivial nature of the offence, or
to the extenuating circumstances under which the offence was committed, it
is inexpedient to inflict any punishment or any other than a nominal
punishment, or that it is expedient to release the oSender on probation,
the Court may, without proceeding to conviction, make an order either —
(i) dismissing the information or charge ; or

(ii) discharging the ofiender conditionally on his entering into a recog-
nizance, with or without sureties, to be of good behaviour and
to appear for conviction and sentence when called on at any
time during such period, not exceeding three years, as may he
specified in the order (j).

(2) Where any person has been convicted on indictment of any offence
punishable with imprisonment (k), and the Court is of opinion that,
having regard to the character, antecedents, age, health, or mental
condition of the person charged, or to the trivial nature of the offence,
or to the extenuating circumstances under which the offence was com-
mitted, it is inexpedient to inflict any punishment or any other than a
nominal punishment, or that it is expedient to release the offender on
probation, the Court may, in lieu of imposing a sentence of imprisonment,
make an order discharging the offender conditionally on his entering
into a recognizance, with or without sureties, to be of good behaviour
and to appear for sentence when called on at any time during such period,
not exceeding three years, as may be specified in the order (kk).

(3) The Court may, in addition to any such order, order the offender

{g) Vide ante, p. 218. are new.

(h) 60 & 51 Vict. c. 25. (k) This does not appear to be limited to

(*■) This Act repeals the Act of 1887, cases in which imprisonment only or a less

s. 16 of the Summary Jurisdiction Act, punishment may be awarded, but seems to

1879 (42 & 43 Vict. c. 49), and s. 12 of the extend to cases in which penal servitude

Youthful Offenders Act, 1901 (1 Edw. VII. may be imposed as an alternative to im-

u. 20). prisonment.

{ii) 8. 10 (3). (kk) This subsection does not, except as

(;■) This subsection is based on 42 & 43 to release on probation, add anything to

Vict. c. 49, 8. 16, but the provisions italicised the common-law powers of the Court.

228 Of Punishments. fi^ooK i.

to pay such damages for injury or compensation for loss (not exceeding
in the case of a Court of Summary Jurisdiction £10, or, if a higher limit
is fixed by any enactment relating to the offence, that higher limit) and
to pay such costs of the proceedings as the Court thinks reasonable' ..•(')•
Probation Orders and Conditions of Recognizances. — Sect. 2. — (1) A
recognizance ordered to be entered into under this Act shall, if the Court
so order, contain a condition that the offender be under the supervision
of such person as may be named in the order (II) during the period specified
in the order, and such other conditions for securing such supervision as
may be specified in the order, and an order requiring the insertion of
such conditions as aforesaid in the recognizance is in this Act referred
to as a probation order.

(2) A recognizance under this Act may contain such additional
conditions as the Court may, having regard to the particular circum-
stances of the case, order to be inserted therein with respect to all or any
of the following matters : —

(a) for prohibiting the offender from associating with thieves and

other undesirable persons, or from frequenting undesirable
places ;

(b) as to abstention from intoxicating liquor, where the offence

was drunkenness or an offence committed under the influence
of drink (m) ;

and industrious life.

(3) The Court by which a probation order is made shall furnish to
the offender a notice in writing stating in simple terms the conditions
he is required to observe.

Probation Officers. — Sect. 3. — (1) There may be appointed as probation
officer or officers for a petty sessional division such person or persons of
either sex as the authority having power to appoint a clerk to the justices
of that division may determine, and a probation officer when acting
under a probation order shall be subject to the control of petty sessional
Courts for the division for which he is so appointed.

(2) There shall be appointed, where circumstances permit, special
probation officers, to be called children's probation officers, who shall, in
the absence of any reasons to the contrary, be named in a probation order
made in the case of an offender under the age of sixteen.

(3) The person named in any probation order shall —

(a) where the Court making the order is a Court of Summary Juris-
diction, be selected from amongst the probation officers for the
petty sessional division in or for which the Court acts ; or

(6) where the Court making the order is a Court of Assize or a Court of
Quarter Sessions, be selected from amongst the probation officers
for the petty sessional division from which the person charged
was committed for trial :

Provided that the person so named may, if the Court considers it

{I) The rest of this section is repealed by {11} Cf. 8 Edw. VII. o 67 s 60

the Children Act, 1908 (8 Edw. VII. o. 67), (to) See R. v. Daviea [19091 1 K -R Rq9 •

and replaced by ss. 99, 107 of that Act. 25 T. L. B. 279, ''' '

CHAP, vii.i Probation of Offenders. 229

expedient on account of the place of residence of the offender, or for any
other special reason, be a probation officer for some other petty sessional
division, and may, if the Court considers that the special circumstances
of the case render it desirable, be a person who has not been appointed to
be probation officer for any petty sessional division.

(4) A probation officer appointed for a petty sessional division may
be paid such salary as the authority having the control of the fund out of
which the salary of the clerk to the justices of that petty sessional division
is paid may determine, and if not so paid by salary may receive such
remuneration for acting under a probation order as the Court making the
order thinks fit, not exceeding such remuneration as may be allowed by
the regulations of such authority as aforesaid, and may in either case be
paid such out-of-pocket expenses as may be allowed under such regulations as
aforesaid, and the salary or remuneration and expenses shall be paid by
that authority out of the said funds.

(5) A person named in a probation order not being a probation officer
for a petty sessional division may be paid such remuneration and out-of-
pocJcet expenses out of such fund as the Court making the probation order
may direct, not exceeding such as may be allowed under the regulations of
the authority having control of the fund out of ivhich the remuneration is
directed to be paid.

(6) The person named in a probation order may at any time be re-
lieved of his duties, and in any such case or in case of the death of the person
so named, another person may be substituted by the Court before which tJie
offender is bound by his recognizance to appear for conviction or sentence, or,
if he be a probation officer /or a petty sessional divison, by a Court to whose
control that officer is subject.

(7) In the application of this Act to the City of London and the
metropolitan police court district, the city and each division of that
district shall be deemed to be a petty sessional division.

Sect. 4. It shall be the duty of a probation officer, subject to the directions
of the Court —

(a) to visit or receive reports from the person under supervision at such
reasonable intervals as may be specified in the probation order or,
subject thereto, as the probation officer may think fit ;

(6) to see that he observes the conditions of his recognizance ;

{d) to advise, assist, and befriend him, and, when necessary, to endeavour
to find him suitable employment.

Varying or Discharging Recognizances. — Sect. 5. The Court before which
any person is bound by his recognizance under this Act to appear for con-
viction or sentence may, upon the application of the probation officer, and
after notice to the offender, vary the conditions of the recognizance and may,
on being satisfied that the conduct of that person has been such as to make it
unnecessary that he should remain longer under supervision, discharge the
recognizance.

Provision in Case of Breach of Condition. — Sect. 6. — (1) If the Court
before which an offender is bound by his recognizance under this Act to appear
for conviction or sentence, or any Court of Summary Jurisdiction, is satisfied

230 Of Punishments. [BOOk i.

by information on oath that the offender has failed to observe any of the
conditions of his recognizance, it may issue a warrant for his apprehension, or
may, if it thinks fit, instead of issuing a warrant in the first instance, issue a
summons to the offender and his sureties (if any) requiring him or them to
attend at such Court and at such time as may be specified in the summons.

(2) The offender, when apprehended, shall, if not brought forthwith be-
fore the Court before which he is bound by his recognizance to appear for
conviction or sentence, be brought before a Court of Summary Jurisdiction.

(3) The Court before which an offender on apprehension is brought,
or before which he appears in pursuance of such summons as aforesaid,
may, if it is not the Court before which he is bound by his recognizance to
appear for conviction or sentence, remand him to custody or on bail until
he can be brought before the last-mentioned Court.

(4) An offender so remanded to custody may be committed during
remand to any prison to which the Court having power to convict or
sentence him has power to commit prisoners {mm). . . .

(5) A Court before which a person is hound by his recognizance to appear
for conviction and sentence, on being satisfied that he has failed to observe
any condition of his recognizance, may forthmth, without further proof of his
guilt, convict and sentence him for the original offence or, if the case was one
in which the Court in the first instance might, under sect, fifteen of the
Industrial Schools Act, 1866 (w), have ordered the offender to be sent to a
certified industrial school, and the offender is still apparently under the age
of twelve years, make such an order.

Power to make Rules. — Sect. 7. The Secretary of State may make rules (o)
for carrying this Act into effect, and in particular for prescribing such
matters incidental to the appointment, resignation, and removal of proba-
tion officers, and the performance of their duties, and the reports to be
made by them, as may appear necessary {p).

Sect. IX. — Punishment ov Persons under Sixteen.

The Children Act, 1908 (7 Edw. VII. c. 67), has made considerable

changes in the law as to punishment of persons under sixteen, and repeals and

re-enacts with amendments the Industrial and Reformatory Schools Acts {q).

By sect. 131, ' for the purposes of this Act, unless the context

otherwise requires —

The expression " child " means a person under the age of fourteen

years (r) ;
The expression "young person " means a person who is fourteen years
of age or upwards and under the age of sixteen years ;

(mm) Thcrestof this section is repealed by necessary to apply the Act to Scotland and

the Children Act, 1908 (8 Edw. VII. c. 67), Ireland. S. 10 deals with repeals, &o.

and replaced by s. 107 (k) of that Act, post, (q) 29 & 30 Viet. cc. 117, 118 ; 35 & S6

p. 232. Vict. c. 21 ; 43 & 44 Vict. c. 15 ; 64 & 55

(re) 29&30Vict.c. 118, now incorporated Vict. c. 23; 56 & 57 Vict. c. 48; 57 & 58

in the Children Act, 1908 : 8 Edw. VII. Vict. c. 33 ; 62 & 63 Vict. u. 12.

c. 67, Pt. iv. (r) Under the Summary Jurisdiction

(o) Rules were made Nov. 27, 1907, as to Act, 1879 (42 & 43 Vict. c. 49), o. 49, child

the appointment and duties of probation meant a person under twelve, and young

officers and as to reports by them (St. R. person a person of twelve and under six-

& 0. 1907, No. 945). teen. This definition is altered by a.

(p) Ss. 8, 9 make the mo'difications 128 of the Children Act, 1908.

CHAP. Vlt] Punishment of Persons under Sixteen. 231

The expression "guardian" in relation to a child, young person, or
youthful offender, includes any person who, in the opinion of
the Court having cognizance of any case in relation to the
child, young person, or youthful offender, or in which the child,
young person, or youthful offender is concerned, has for the time
being the charge of or control over the child, young person, or
youthful offender ;

The expression " legal guardian," in relation to an infant, chUd, young
person, or youthful offender, means a person appointed, according
to law, to be his guardian by deed or will, or by order of a Court of
competent jurisdiction/

Youthful offender means an offender under the age of sixteen.

By sect. 102 — (1) ' A child (rr) shall not be sentenced to imprison-
ment or penal servitude for any offence, or committed to prison in
default of payment of a fine, damages, or costs.

(2) A young person (s) shall not be sentenced to penal servitude for
any offence.

(3) A young person shall not be sentenced to imprisonment for an
offence, or committed to prison in default of payment of a fine, damages,
or costs, unless the Court certifies that the young person is of so unruly
a character that he cannot be detained in a place of detention provided
under this Part of this Act [t), or that he is of so depraved a character
that he is not a fit person to be so detained ' [u) .

For sect. 103, abolishing capital punishment of children or young
persons, vide ante, p. 205.

By sect. 104, ' Where a child or young person is convicted on indict-
ment of an attempt to murder, or of manslaughter, or of wounding with
intent to do grievous bodily harm, and the Court is of opinion that no
punishment which, under the provisions of this Act, it is authorised to
inflict is sufficient, the Court may sentence the offender to be detained
for such period as may be specified in the sentence ; and where such a
sentence is passed, the child or young person shall during that period,
notwithstanding anything in the other provisions of this Act, be liable
to be detained in such place and on such conditions as the Secretary of
State may direct, and whilst so detained shall be deemed to be in legal
custody' {v).

By sect. 106, ' Where a child or young person is convicted of an
offence punishable, in the case of an adult, with penal servitude or
imprisonment, or would, if he were an adult, be liable to be imprisoned
in default of payment of any fine, damages, or costs, and the Court
considers that none of the other methods in which the case may legally
be dealt with is suitable, the Court may, in lieu of sentencing him to
imprisonment or committing him to prison, order that he be committed
to custody in a place of detention provided under this Part of this Act (w),

(rr) DeBned s. 131. tion tinder ss. 103, 104.

\s) Ibid. (w) Provided by the police authority

(t) See ss. 106, 108. under s. 108. By s. 109 the order or

\u) Defined by s. 44. judgment committing the offender is a.

\v) S. 105 empowers the Secretary of sufficient authority for his detention.
State to release on licence children in deten-

232 Of Punishments. [book 1.

and named in the order for such term as may be siDecified in the order, not
exceeding the term for which he might, but for this Part of this Act, be
sentenced to imprisonment or committed to prison, nor in any case
exceeding one month.'

By sect. 107, ' Where a child or young person charged with any
offence is tried by any Court, and the Court is satisfied of his guUt, the
Court shall take into consideration the manner in which under the pro-
visions of this or any other Act enabling the Court to deal with the case,
the case should be dealt with, namely, whether —
(a) by dismissing the charge ; or

(6) by discharging the offender on his entering into a recognisance ; or
(c) by so discharging the offender and placing him under the super-
vision of a probation officer {vide s. 60) ; or
{d) by committing the offender to the care of a relative or other fit

person ; or
(e) by sending the offender to an industrial school {vide s. 58) ; or
(/) by sending the offender to a reformatory school {vide s. 57) ; or
{g) by ordering the offender to be whipped {x) ; or
(h) by ordering the offender to pay a fine {y), damages, or costs ; or
{%) by ordering the parent or guardian of the offender to pay a fine,

damages, or costs {vide s. 99 (1)) ; or
{j) by ordering the parent or guardian of the offender to give security

for his good behaviour {vide s. 99 (2)) ; or
{k) by committing the offender to custody in a place of detention pro-
vided under this part of this Act {vide ss. 103, 104, 108) ; or
(Z) where the offender is a young person, by sentencing him to
imprisonment {vide s. 102 (3)) ; or
(m) by dealing with the case in any other manner in which it may be
legally dealt with :
Provided that nothing in this section shall be construed as authorising
the Court to deal with any case in any manner in which it could not
deal with the case apart from this section ' {z).

Industrial Schools. — By sect. 58 (a), (2) ' Where a child apparently under
the age of twelve years is charged before a Court of Assize or Quarter
Sessions or a Petty Sessional Court, with an offence punishable in the case
of an adult by penal servitude or a less punishment, the Court if satisfied
on inquiry that it is expedient so to deal with the child, may order him
to be sent to a certified industrial school' (6).

(7) Where under this section a Court is empowered to order a child
to be sent to a certified industrial school the Court, in lieu of ordering

(x) Ante, p. 215. (6) Framed on 29 &, 30 Vict. c. 118, s. 15 ;

(y) Ante, p. 217. 1 Edw. VII. c. 15, s. 5. Children not

(z) The proviso means that the legal apparently of the age of twelve or thirteen

authority for the mode of dealing with the not previously convicted who are charged

case selected must be found in another before Courts of summary jurisdiction with

section of the Act or in some other statute such offences may be sent to an industrial

or the common law. school subject to a power by the Secretary

(a) Ss. 44-56 deal with the definition, of State to transfer them to a reformatory,

certification, and inspection of reformatory s. 58, subs. 3. Industrial school is defined

and industrial schools. by s. 44 of the Act of 1908.

CHAP, vn.] PunishmeMt of Persons under Sixteen. 233

him to be so sent, may in accordance with the provisions of Part II. of
this Act (c), make an order for the committal of the child to the care of a
relative or other fit person named by the Court, and the provisions of
that Part shall, so far as applicable, apply as if the order were an order
under that Part.

By sect. 60, ' Where under the provisions of this part of this Act an
order is made for the committal of a child or young person to the care
of a relative or other fit person named by the Court, the Court may in
addition to such order make an order under the Probation of Offenders
Act, 1907 (ante, p. 227), that the child or young person be placed under
the supervision of a probation officer :

Provided that the recognizance into which the child, if not charged
with an offence, or the young person is required to enter, shall bind him
to appear and submit to the further order of the Court.'

A child ordered to be detained under this or following sections con-
tinues to be subject to the order during the whole period of detention,
even though he attains the age of fourteen before it has expired (d).

Reformatories. — By sect. 57, (1) ' Where a youthful offender, who in
the opinion of the Court before which he is charged is twelve years of age
or upwards but less than sixteen years of age, is convicted, whether on
indictment or by a Petty Sessional Court, of an offence punishable, in the
case of an adult, with penal servitude or imprisonment, the Court may,
in addition to or in lieu of sentencing him according to law to any other
punishment, order that he be sent to a certified reformatory school :

Provided that where the offender is ordered to be sent to a certified
reformatory school he shall not in addition be sentenced to imprisonment.

(2) Where such an order has been made in respect of a youthful
offender of the age of fourteen years or upwards, and no certified reform-
atory school can be found the managers of which are willing to receive
him, the Secretary of State may order the offender to be brought before
the Court which made the order or any Court having the like juris-
diction, and that Court may in lieu of the detention order make such
order or pass such sentence of imprisonment as the Court may determine,
so however that the order or sentence shall be such as might have been
originally made or passed in respect of the offence.'

Power to send Offenders conditionally pardoned to Reformatory
Schools. — By sect. 84, ' Where a youthful offender has been sentenced to
imprisonment or penal servitude, and has been pardoned by His Majesty
on condition of his placing himself under the care of some charitable institu-
tion for the reception and reformation of youthful offenders, the Secretary
of State may direct him, if under the age of sixteen years, to be sent to a
certified reformatory school, the managers of which consent to receive
him, for a period of not less than three and not more than five years,
but not in any case exi}ending beyond the time when he will in the opinion
of the Secretary of State attain the age of nineteen years ; and thereupon
the offender shall be subject to all the provisions of this Part of this Act,

et seq.

234 Of Punishments. [booK 1.

as if he had teen origiiially sentenced to detention in a certified reform-
atory school ' (e).

By sect. 61, 'An order of a Court ordering a youthful offender or
child to be sent to and detained in a certified school (in this Act referred
to as a detention order), may, if the Court think fit, be made to take
effect either immediately or at any later date specified therein, regard
being had to the age or health of the youthful ofiender or child.'

By sect. 62, (1) ' The school to which a youthful offender or child is
to be sent under a detention order shall be such school as may be specified
in the order, being some certified school (whether situate within the
jurisdiction of the Court making the order or not) the managers of which
are willing to receive the youthful offender or child :

Provided that if it is found impossible to specify the school in the
detention order, the school shall, subject to the provisions of this Act
with respect to the determination of the place of residence of a youthful
offender or child, be such as a justice having jurisdiction in the place
where the Court which made the order sat may by endorsement on the
detention order direct' (/).

By sect. 63, If—

(a) a detention order is made but is not to take effect immediately ; or,

(b) at the time specified for the order to take effect the youthful

offender or child is unfit to be sent to a certified school ; or,

cannot be ascertained until inquiry has been made,
the Court may make an order committing him either to custody in any
place to which he might be committed on remand under Part V. of this
Act (gr), or to the custody of a relative or other fit person to whose care he
might be committed under Part II. of this Act (/*), and he shall be kept in
that custody accordingly until he is sent to a certified school in pursuance
of the detention order.

By sect. 64, (1) ' The person by whom any youthful offender or child
ordered to be sent to a certified school is detained shall at the appointed
time dehver him into the custody of the constable or other person respon-
sible for his conveyance to school, who shall deliver him to the superinten-
dent or other person in charge of the school in which he is to be detained,
together with the order or other document in pursuance of which the
offender or child was detained and is sent to the school.

(2) The detention order in pursuance of which the youthful offender
or child is sent to a certified school shall be a sufficient authority for his
conveyance to and detention in the school or any other school to which
he is transferred under this Part of this Act ' (i).

By sect. 65, ' The detention order shall specify the time for which the
youthful offender or child is to be detained in the school, being —

(a) in the case of a youthful offender sent to a reformatory school,
not less than three and not more than five years, but not in any case

s- 32. (h) Vide s. 20, post, p. 915 et seq., ' 111-

( f ) Subsect. 2 provides for cases of treatment of Children.'

children who are physically or mentally (») Framed from 29 & 30 Vict. c. 117,

defective. s. 15 ; 29 & 30 Vict. ^. 118, s. 22 ; 56 & 57

(?) i.e. a place of detention provided by Vict. c. 48, n. 2.

CHAP, vli.] Punishment of Persons under Sixteen. 235

extending beyond the time when the youthful offender will, in the opinion
of the Court, attain the age of nineteen years ; and

(b) in the case of a child sent to an industrial school, such time as
to the Court may seem proper for the teaching and training of the child,
but not in any case extending beyond the time when the child will, in
the opinion of the Court, attain the age of sixteen years ' (/).

By sect. 66, (1) The ..Court or justice, in determining the certified
school to which a youthful offender or child is to be sent, shall endeavour
to ascertain the religious persuasion to which the offender or child belongs,
and the detention, order shall, where practicable, specify the religious
persuasion to which the offender or child appears to belong, and a school
conducted in accordance with that persuasion shall, where practicable,
be selected (Jc).

(3) Where an order has been made for sending a youthful offender
or child to a certified school which is not conducted in accordance with
the religious persuasion to which the offender belongs, the parent, legal
guardian, nearest adult relative, or person entitled to the custody of the
offender or child may apply —

(a) If the detention order was made by a Petty Sessional Court,
to a Petty Sessional Court acting in and for the place in and
for which the Court which made the order acted ; and
(6) in any other case, to the Secretary of State,
to remove or send the offender or child to a certified school conducted
in accordance with the offender's or child's religious persuasion, and
the Court or Secretary of State shall, on proof of the offender's or child's
religious persuasion, comply with the request of the applicant :
Provided that —

(i) the application must be made before the offender or child has
been sent to a certified school, or within thirty days after his
arrival at the school ; and
(ii) the applicant must, show to the satisfaction of the Court or
Secretary of State that the managers of the school named by
him are willing to receive the offender or child (l) :
(iii) nothing in this section shall be construed as preventing any
such person as aforesaid from making an apphcation to the
Secretary of State after the expiration of the said period of
thirty days to exercise tjie powers of transfer conferred on
him by the other provisions of this Act.
Sect. 67 empowers the managers to release children or youthful
offenders on licence (with the consent of the Secretary of State), and
provides as to the conditions of the licence, and for forfeiture or breach
of conditions (m).

By sect, 68^(1) ' Every youthful off ender sent to a certified reforma-
tory school shall, on the expiratioii of the period of his detention, if

(j) Framed from 29 & 30 Vict. c. 118^ (1) Framed from 29 & 30 Vict. c. 117, ss. 14,

s. 18 ; 56 & 57 Vict. c. 48, s. 1. 16 ; c. 118, ss. 18, 20, 25.

{k) Subseet. 2 provides for visits to the (m) Framed from 29 & 30 Vict. c. 117,

youthful offender by a minister of the s. 18 ; o. 118, s. 17 ; 39 & 40 Vict. ^. 79,

persuasion.

s. 14.

Of Punishments. [BOOK I.

that period expires before he attains the age of nineteen years, remain up
to the age of nineteen under the supervision of the managers of the school.

(2) Every child sent to an industrial school shall, from the expira-
tion of the period of his detention, remain up to the age of eighteen under
the supervision of the managers of the school (w).

(3) The managers may grant to any person under their supervision
a licence in the manner provided by this Part of this Act, and may
revoke any such licence, and recall any such person to the school; and any
person so recalled may be detained in the school for a period not exceeding
three months, and may at any time be again placed out on licence :
Provided that —

(a) a person shall not be so recalled unless the managers are of opinion
that the recall is necessary for his protection ; and

(6) the managers shall send to the chief inspector of reformatory
and industrial schools an immediate notification of the recall
of any person, and shall state the reasons for his recall ; and

(c) they shall again place the person out as soon as possible, and at
latest within three months after the recall, and shall forthwith
notify the chief inspector that the person has been placed out.

(4) A licence granted to a youthful offender or child before the expira-
tion of his period of detention shall, if he is liable to be under supervision
in accordance with this section, continue in force after the expiration of that
period, and may be revoked in manner provided by this Part of this Act.

(5) The Secretary of State may at any time order that a person under
supervision under this section shall cease to be under such supervision (o).

By sect. 69, (1) The Secretary of State may at any time order a
youthful offender or a child to be discharged from a certified school,
either absolutely or on such conditions as the Secretary of State approves,
and may, where the order of discharge is conditional, revoke the order
on the breach of any of the conditions on which it was granted, and
thereupon the youthful offender or child shall return to school, and if he
fails to do so he and any person who knowingly harbours or conceals
him or prevents him from returning to school shall be liable to the same
penalty as if the youthful offender or child had escaped from the school.
(2) The Secretary of State may order —
(a) a youthful offender or child to be transferred from one certified
reformatory school to another, or from one certified industrial
school to another ;
(&) a youthful offender under the age of fourteen years detained in
a certified reformatory school to be transferred to a certified
industrial school ;
(c) a child over the age of twelve years detained in a certified indus-
trial school, who is found to be exercising an evil influence over
the other children in the school, to be transferred to a certified
reformatory school ;

(n) This does not apply to children sent 3, 4. By subs. 6 parents may not exercise

to industrial schools to enforce an attend- their parental rights so as to interfere with

ance order (proviso to subs. 2). the supervision of the managers.

(o) Framed on 57 & 58 Vict. u. 33, ss. 1,

CHAP. VII.] Detention in Borstal Institutions. 237

so however that the whole period of the detention of the offender or child
shall not be increased by the transfer.

(3) Where a youthful ofEender or child is detained in a certified school
in one part of the United Kingdom, the central authority for that part
of the United Kingdom may, subject to the provisions of this section,
direct the youthful offender or child to be transferred to a certified school
in another part of the United Kingdom if the central authority for that
other part consents.

For the purpose of this provision central authority means the Secretary
of State, the Secretary for Scotland, or the Chief Secretary, as the case
may be ' {f).

By sect. 70, ' If any youthful offender or child detained in or placed
out on licence from a certified school, or a person when under the super-
vision of the managers of such a school, conducts himself well, the
managers of the school may, with his own consent, apprentice him to,
or dispose of him in, any trade, calling, or service, including service in
the Navy or Axmy, or by emigration, notwithstanding that his period of
detention or supervision has not expired; and such apprenticing or
disposition shall be as valid as if the managers were his parents :

Provided that where he is to be disposed of by emigration, and in any
case unless he has been detained for twelve months, the consent of the
Secretary of State shall also be required for the exercise of any power
under this section ' {q).

Sect. X. — Detention in Borstal Institutions of Offenders
BETWEEN Sixteen and Twenty-three.

By the Prevention of Crime Act, 1908 (8 Edw. VII. c. 59), s. 1—
(1) ' Where a person is convicted on indictment of an offence for which
he is liable to be sentenced to penal servitude or imprisonment, and it
appears to the Court —

{a) that the person is not less than sixteen nor more than twenty-one

years of age ; and
(6) that, by reason of his criminal habits or tendencies, or association
with persons of bad character, it is expedient that he should be
subject to detention for such term and under such instruction
and discipline as appears most conducive to his reformation
and the repression of crime,
it shall be lawful for the Court, in lieu of passing a sentence of penal
servitude or imprisonment, to pass a sentence of detention under penal
discipline in a Borstal Institution (r) for a term of not less than one year
nor more than three years :

Provided that before passing such a sentence, the Court shall consider
any report or representations which may be made to it by or on behalf
of the Prison Commissioners as to the sixitabiUty of the case for treatment
in a Borstal Institution, and shall be satisfied that the character,
stat.e of health, and mental condition of the offender, and the other

(jj) Framed on 29 & 30 Vict. u. 117, s. 19 ; c. 118, s. 28 ; 56 & 57 Vict. c. 48,
D. 17 ; c. 118, ss. 42, 43. s. 1.

(g) Framed on 29 & 30 Vict. c. 117, (r) Defined s. i, post, p. 238.

238 Of Punishments. [book i.

circumstances of- the case, are such that the ofiender is likely to profit
by such instruction and discipline as aforesaid.

(2) The Secretary of State may by order direct that this section shall
extend to persons apparently under such age not exceeding the age of
twenty-three (s) as may be specified in the order, and upon such an order
being made this section shall, whilst the order is in force, have effect as
if the specified age were substituted for " twenty-one " :

Provided that such an order shall not be made until a draft thereof
has lain before each House of Parliament for not less than thirty days
during the session of Parliament, and if either House, before the expira-
tion of that period, presents an address to His Majesty against the draft
or any part thereof, no further proceedings shall be taken thereon, but
without prejudice to the making of any new draft order/

Substitution of Borstal Institution for Reformatory. — Sect. 2. ' Where
a youthful offender sentenced to detention in a reformatory school {t)
is convicted under any Act before a Court of Summary Jurisdiction of
the offence of committing a breach of the rules of the school, or of inciting
to such a breach, or of escaping from such a school, and the Court might
under that Act sentence the offender to imprisonment, the Court may,
in lieu of sentencing him to imprisonment, sentence him to detention in
a Borstal Institution for a term not less than one year nor more than
three years, and in such case the sentence shall supersede the sentence of
detention in a reformatory school.'

Transfer from Prison to Borstal Institution. — Sect. 3. ' The Secretary
of State may, if satisfied that a person undergoing penal servitude or
imprisoned in consequence of a sentence passed either before or after the
passing of this Act, being within the limits of age within which persons
may be detauied in a Borstal Institution, might with advantage be
detained in a Borstal Institution, authorise the Prison Commissioners to
transfer him from prison to a Borstal Institution, there to serve the whole or
any part of the unexpired residue of his sentence, and whilst detained in,
or placed out on licence from, such an institution, this Part of this Act shall
apply to him as if he had been originally sentenced to detention in a
Borstal Institution.'

Sect. 4.— (1) ' For the purposes of this Part of this Act the Secretary
of State may establish Borstal Institutions (m), that is to say, places in
which young offenders whilst detained may be given such industrial
training and other instruction, and be subjected to such disciplinary
and moral influences as will conduce to their reformation and the preven-
tion of crime, and for that purpose may, with the approval of the Treasury,
authorise the Prison Commissioners either to acquire any land or to erect or
acquire any building or to appropriate the whole or any part of any land or
buildmg vested in them or under their control, and any expenses incurred
under this section shall be paid out of moneys provided by Parliament.

(2) The Secretary of State may make regulations for the rule and

(b) Recommended by the Prison Com- coin Prisons under special rules of July,

missioners (Pari. Pap. 1908, ^. 3738, p. 26). 1906 (St. R.'& 0. 1906, No. 525), arid "in

(<) F»<ie a»fe p. 233. certain other prisons. See Prison Com-

(u) Up to 1908 ottenders were dealt with missioners' Report (Pari. Pap. 1908 c. 3738

on the Borstal system in Borstal and Lin- pp. 14-26). ' '

CHAP. VII.] Detention in Borstal Institutions. 239

management of any Borstal Institution, and the constitution of a visiting
committee thereof, and for the classification, treatment, and employment
and control of persons sent to it in pursuance of this Part of this Act,
and for their temporary detention until arrangements can be made for
sending them to the institution, and, subjfect to any adaptations, alter-
ations, and exceptions made by such regulations, the Prison Acts, 1865
to 1898 (including the penal provisions thereof), and the rules thereunder,
shall apply in the case of every such institution as if it were a prison.'

Sect. 5. — (1) 'Subject to regulations by the Secretary of State, the
Prison Commissioners may at any time after the expiration of six months,
or, in the case of a female, three months, from the commencement of
the term of detention, if satisfied that there is a reasonable probability
that the offender will abstain from crime and lead a useful and industrious
life, by licence permit him to be discharged from the Borstal Institution
on condition that he be placed under the supervision or authority of any
society or person named in the licence who may be willing to take charge
of the case.

(2) A licence under this section shall be in force until the term for
which the offender was sentenced to detention has expired, unless sooner
revoked or forfeited.

(3) Subject to regulations by the Secretary of State, a licence under
this section may be revoked at any time by the Prison Commissioners,
and where a licence has been revoked the person to whom the licence
related shall return to the Borstal Institution, and if he fails to do so
may be apprehended without warrant and taken to the institution.

(4) If a person absent from a Borstal Institution under such a licence
escapes from the supervision of the society or person in whose charge
he is placed, or commits any breach of the conditions contained in the
licence, he shall be considered thereby to have forfeited the licence.

(5) A Court of Summary Jurisdiction for the place where the Borstal
Institution from which a person has been placed out on licence is situate
or where such a person is found may, on information on oath that the
licence has been forfeited under this section, issue a warrant for his
apprehension, and he shall, on apprehension, be brought before a Court
of Summary Jurisdiction, which, if satisfied that the licence has been
forfeited, may order him to be remitted to the Borstal Institution, and
may commit him to any prison within the jurisdiction of the Court until
he can conveniently be removed to the institution.

(6) The time during which a person is absent from a Borstal Institu-
tion under such a licence shall be treated as part of the time of his deten-
tion in the institution : Provided that where that person has failed to
return to the institution on the licence being forfeited or revoked, the time
which elapses after his failure so to return shall be excluded in computing
the time during which he is to be detained in the institution.

(7) A licence under this section shall be in such form and shall contain
such conditions as may be prescribed by regulations made by the Secretary
of State.'

Supervision after Expiration of Term of Sentence.— Sect. 6. — (1) ' Every
person sentenced to detention in a Borstal Institution shall, on the

240 Of Punishments. [book i.

expiration of the term of his sentence, remain for a further period of
six months under the supervision of the Prison Commissioners.

(2) The Prison Commissioners may grant to any person under their
supervision a licence in accordance with the last foregoing section, and
may revoke any such licence and recall the person to a Borstal Institution,
and any person so recalled may be detained in a Borstal Institution for
a period not exceeding three months, and may at any time be again
placed out on licence :

Provided that a person shall not be so recalled unless the Prison
Commissioners are of opinion that the recall is necessary for his protection,
and they shall again place him out on licence as soon as possible and at
latest within three months after the recall, and that a person so recalled
shall not in any case be detained after the expiration of the said period
of six months' supervision.

(3) A licence granted to a person before the expiration of his sentence
of detention in a Borstal Institution shall, on his becoming liable to be
under supervision in accordance with this section, continue in force
after the expiration of that term, and may be revoked in manner provided
by the last foregoing section.

(4) The Secretary of State may at any time order that a person under
supervision under this section shall cease to be under such supervision.'

Transfer from Borstal Institution to Prison. — Sect. 7. 'Where a person
detained in a Borstal Institution is reported to the Secretary of State by
the visiting committee of such institution to be incorrigible, or to be
exercising a bad influence on the other inmates of the institution, the
Secretary of State may commute the unexpired residue of the term of
detention to such term of imprisonment, with or without hard labour,
as the Secretary of State may determine, but in no case exceeding such
unexpired residue.'

Sect. 8. ' Where a society has undertaken the duty of assisting or
supervising persons discharged from a Borstal Institution, either abso-
lutely or on licence, there may be paid to the society out of money provided
by Parliament towards the expenses of the society incurred in connection
with the persons so discharged such sums on such conditions as the
Secretary of State, with the approval of the Treasury, may recommend.'

Transfer from one Part of British Islands to Another.— Sect. 9. ' Where
a person has been sentenced to detention in a Borstal Institution in one
part of the United Kingdom, the Secretary of State, the Secretary for
Scotland, or the Lord Lieutenant of Ireland, as the case may be, may,
as authority under this Act for that part of the United Kingdom, direct
that person to be removed to and detained in a Borstal Institution in
another part of the United Kingdom, with the consent of the authority
under this Act for that other part.'

Sect. XL— Preventive Detention of Habitual Criminals.

By the Prevention of Crime Act, 1908 (8 Edw. VII. c. 59), which came
into force on August 1, 1909 {vide s. 10 (2) ).

Sect. 10.— (1) 'Where a person is convicted on indictment of a crime,

CHAP. VlL] Preventive Detention of Habitual Criminals. 241

committed after the passing of this Act, and subsequently the offender
admits that he is or is found by the jury to be a habitual criminal («),
and the Court passes a sentence of penal servitude, the Court, if of
opinion that by reason of his criminal habits and mode of life it is
expedient for the protection of the public that the offender should be
kept in detention for a lengthened period of years, may pass a further
sentence ordering that on the determination of the sentence of penal
servitude he be detained fpr such period not exceeding ten nor less than
five years, as the Court E...y determine, and such detention is herein-
after referred to as preventive detention, and a person on whom
such a sentence is passed shall, whilst undergoing both the sentence of
penal servitude and the sentence of preventive detention, be deemed
for the purposes of the Forfeiture Act, 1870 (vv), and for all other
purposes, to be a person convicted of felony.

(2) A person shall not be found to be a habitual criminal unless the
jury finds on evidence —

(a) that since attaining the age of sixteen years he has at least three
times previously to the conviction of the crime charged in the said
indictment, been convicted of a crime, whether any such previous
conviction was before or after the passing of this Act, and he is
leading persistently (w) a dishonest or criminal life ; or

(b) that he has on such a previous conviction been found to be a

habitual criminal and sentenced to preventive detention.

(3) In any indictment under this section it shall be sufficient, after
charging the crime, to state that the offender is a habitual criminal.

(4) In the proceedings on the indictment the offender shall in the first
instance be arraigned on so much only of the indictment as charges the
criine, and if on arraignment he pleads guilty or is found guilty by the jury,
the jury shall, unless he pleads guilty to being a habitual criminal, be
charged to inquire whether he is a habitual criminal, and in that case it
shall not be necessary to swear the jury again :

Provided that a charge of being a habitual criminal shall not be
inserted in an indictment —

(a) without the consent of the Director of Public Prosecutions (ww) ; and

(b) unless not less than seven days' notice has been given to the proper

officer of the Court by which the offender is to be tried, and to
the offender, that it is intended to insert such a charge,
and the notice to the offender shall specify the previous convictions, and
the other grounds upon which it is intended to found the charge.

(5) Without prejudice to any right of the accused to tender evidence
as to his character and repute, evidence of character and repute may, if
the Court thinks fit,'be admitted as evidence on the question whether the
accused is or is not leading persistently a dishonest or criminal life.

(v) Cf. the provisions as to habitual divisions. The latter includes a ' recidi-

drunkards, post, p. 244. Habitual of- viste ' class. Convict Prison Rules, 1905

fenders confined in local prisons have been (St. R. & 0. 1905, No. 75), ss. 1-16.

separated from other ofienders since 1899. (vv) 33 & 34 Vict. c. 23, vide post, p. 250.

See Local Prison Rules, 1899 (St. R. & 0. (w) See R. v. Raybould, 2 Cr. App. R. 184.

1899, No. 322). In convict prisons persons [ww) As to this office, vide post, Bk. xu.

undergoing penal servitude have been u. i.
classified into ordinary and long sentence

VOL. I. ^

M^ Of Punishments. [book i.

(6) For the purposes of this section the expression " crime " has the
same meaning as in the Prevention of Crimes Act, 1871, (34 & 35 Vict,
c. 112), and the definition of " crime " in that Act, set out in the schedule
to this Act (y), shall apply accordingly.'

Sect. 11. 'A person sentenced to preventive detention may, notwith-
standing anything in the Criminal Appeal Act, 1907 (z), appeal against
the sentence without the leave of the Court of Criminal Appeal.'

Power in Certain Cases to commute Penal Servitude to Pre-
ventive Detention.— Sect. 12. 'Where a person has been sentenced,
whether before or after the passing of this Act, to penal servitude
for a term of five years or upwards (zz), and he appears to the Secretary
of State to have been a habitual criminal within the meaning of this
Act, the Secretary of State may, if he thinks fit, at any time after three
years of the term of penal servitude have expired, commute the whole or
any part of the residue of the sentence to a sentence of preventive deten-
tion, so, however, that the total term of the sentence when so commuted
shall not exceed the term of penal servitude originally awarded.'

Effect and Execution of Sentence. — Sect. 13. — ' (1) The sentence of
preventive detention shall take efEect immediately on the determina-
tion of the sentence of penal servitude, whether that sentence is deter-
mined by effluxion of time or by order of the Secretary of State at
such earlier date as the Secretary of State, having regard to the circum-
stances of the case, and in particular to the time at which the convict, if
sentenced to penal servitude alone, would ordinarily have been licensed
to be at large, may direct.

(2) Persons undergoing preventive detention shall be confined in any
prison or part of a prison which the Secretary of State may set apart for
the purpose, and shall (save as otherwise provided by this Act) be subject
to the law for the time being in force with respect to penal servitude as if
they were undergoing penal servitude :

Provided that the rules applicable to convicts and convict prisons
shall apply to persons undergoing preventive detention, and to the prisons
or parts of prisons in which they are detained, subject to such modifica-
tions in the direction of a less rigorous treatment as the Secretary of State
may prescribe by prison rules within the meaning of the Prison Act,
1898 (a).

(3) Persons undergoing preventive detention shall be subjected to
such disciphnary and reformative influences, and shall be employed on
such work as may be best fitted to make them able and wilHng to earn
an honest livelihood on discharge.

(4) The Secretary of State shall appoint for every such prison or part
of a prison so set apart a board of visitors, of whom not less than two
shall be justices of the peace, with such powers and duties as he may
prescribe — by such prison rules as aforesaid.'

(y) Viz., ' The expression " crime " misdemeanor under the fifty-eighth sec-
means, in England and Ireland, any felony tion of the Larceny Act, 1861 (34 & 35 Vict,
or the offence of uttering false or counter- c. 112).'

feit coin, or of possessing counterfeit gold (2) See the Act, post, Bk. xii. u. iv.

or silver coin, or the offence of obtaining (22) See E. v. Warner, 2 Cr. App. R. 177 ;

goods or money by false pretences, or the 25 T. L. R. 142.

offence of conspiracy to defraud, or any {a) 61 & 62 Vict. c. 41.

CHAP. VII.] Preventive Detention of Habitual Criminals. 243

Discharge on Licence.— Sect. 14.—' (1) The Secretary of State shall,
once at least in every three years during which a person is detained in
custody under a sentence of preventive detention, take into considera-
tion the condition, history, and circumstances of that person with a view
to determining whether he shall be placed out on licence, and, if so, on
what conditions.

(2) The Secretary of State may at any time discharge on licence a
person undergoing preventive detention if satisfied that there is a reason-
able probability that he will abstain from crime and lead a useful and
industrious life or that he is no longer capable of engaging in crime, or
that for any other reason it is desirable to release him from confinement
in prison.

(3) A person so discharged on licence may be discharged on probation,
and on condition that he be placed under the supervision or authority of
any society or person named in the licence who may be willing to take
charge of the case, or on such other conditions as may be specified in the
licence.

(4) The Directors of Convict Prisons shall report periodically to the
Secretary of State on the conduct and industry of persons undergoing
preventive detention, and their prospects and probable behaviour on
release, and for this purpose shall be assisted by a committee at each
prison in which such persons are detained, consisting of such members of
the board of visitors and such other persons of either sex as the Secretary
of State may from time to time appoint.

(5) Every such committee shall hold meetings, at such intervals of
not more than six months as may be prescribed, for the purpose of
personally interviewing persons undergoing preventive detention in the
prison and preparing reports embodying such information respecting
them as may be necessary for the assistance of the Directors, and may at
any other times hold such other meetings, and make such special reports
respecting particular cases, as they may think necessary.

(6) A licence under this section may be in such form and may contain
such conditions as may be prescribed by the Secretary of State.

(7) The provisions relating to licences to be at large granted to
persons undergoing penal servitude shall not apply to persons under-
going preventive detention.'

Sect. 15. — ' (1) The society or person under whose supervision or
authority a person is so placed shall periodically, in accordance with
regulations made by the Secretary of State, report to the Secretary of
State on the conduct and circumstances of that person.

(2) A licence under this part of this Act may be revoked at any time
by the Secretary of State, and where a licence has been revoked, the
person to whom the licence related shall return to the prison, and, if he
fails to do so, may be apprehended without warrant and taken to prison.

(3) If a person absent from prison under such a Ucence escapes from
the supervision of the society or person in whose charge he is placed, or
commits any breach of the conditions contained in the licence, he shall be
considered .thereby to have forfeited the licence, and shall be taken back
to prison.

244 Of Punishments. [book i.

(4) A Court of Summary Jurisdiction for the place where the prison
from which a person has been discharged on licence is situate, or
where such a person is found, may, on information on oath that the
licence has been forfeited under this section, issue a warrant for
his apprehension, and he shall, on apprehension, be brought before
a Court of Summary Jurisdiction, which, if satisfied that the licence
has been forfeited, shall order him to be remitted to preventive deten-
tion, and may commit him to any prison within the jurisdiction of the
Court until he can conveniently be removed to a prison or part of a prison
set apart for the purpose of the confinement of persons undergoing
preventive detention.

(5) The time during which a person is absent from prison under
such a licence shall be treated as part of the term of preventive
detention.

Provided that, where such person has failed to return on the
licence being forfeited or revoked, the time which elapses after his
failure so to return shall be excluded in computing the unexpired
residue of the term of preventive detention.'

Absolute Discharge. — Sect. 16. ' Without prejudice to any other
powers of discharge, the Secretary of State may at any time discharge
absolutely any person discharged conditionally on licence under this
Part of this Act, and shall so discharge him at the expiration of five years
from the time when he was first discharged on licence if satisfied that he
has been observing the conditions of his licence and abstaining from
crime' (6).

Sect. XII. — Detention of Habitual Drunkards.

The following enactments provide for special treatment of offenders
who are habitual drunkards.

' Habitual drunkard means a person who, not being amenable to any
jurisdiction in lunacy, is notwithstanding, by reason of habitual intem-
perate drinking of intoxicating liquor, at times dangerous to himself or
herself or to others, or incapable of managing himself or herself and his or
her affairs '(c).

By the Inebriates Act, 1898 (61 & 62 Vict. c. 60), sect. 1, (1) Where a
person is convicted {d) on an indictment of an offence punishable with
imprisonment or penal servitude, if the Court is satisfied from the
evidence (e) that the offence was committed under the influence of
drink, or that drunkenness was a contributory cause of the offence (/),
and the offender admits that he is, or is found by the jury to be,
an habitual drunkard, the Court may, in addition to or in substitution

(6) Ss. 16, 17 adapt the Act to Scotland Ir. Rep. 577.

and Ireland. S. 18 (2) fixes the com- (e) Qiiffire, including the depositions. So

mencement of the Act, Aug. 1, 1909. held in R. v. Mehan, ubi sup. Palles, C.B.,

by 61 & 62 Vict. c. 60, s. 30. See Eaton w. the Court, not for the jury.

Best [1909], 1 K.B. 632 ; 73 J. P. 113. (/ ) As to criminal responsibility of

{d) Convicted has been held to include a drunken persons, vide ante p. 87
plea of guilty. R. v. Mehan [1905], 2

CHAP. VII.] Detention of Habitual Drunkards. 245

for any other sentence, order that he be detained for a term not
exceeding three years in any state inebriate reformatory, or in any
certified inebriate reformatory the managers of which are willing to
receive him.

(2) In any indictment under this section it shall be sufiicient,
after charging the offence, to state that the offender is an habitual
drunkard. In the proceedings on the indictment the offender shall,
in the first instance, be arraigned on so much only of the indictment
as charges the said offence, and if on arraignment he pleads guilty or
is found guilty by the jury, the jury shall, unless the offender admits
that he is an habitual drunkard, be charged to inquire whether he is an,
habitual drunkard, and in that case it shall not be necessary to swear
the jury again.

Provided that, unless evidence that the offender is an habitual drunk-
ard has been given before he is committed for trial, not less than seven
days' notice shall be given to the proper officer of the Court by which the
offender is to be tried, and to the offender, that it is intended to charge
habitual drunkenness in the indictment.

Special powers as to habitual drunkards convicted of cruelty to
children are given by the Children Act, 1908 (8 Edw. VII. c. 67, s. 26,
post, Book IX., Chapter VIII.) .

By sect. 2, ' (1) Any person who commits any of the offences mentioned
in the first schedule to this Act, and who within the twelve months
preceding the date of the commission of the offence has been convicted
summarily at least three times of any offences so mentioned, and who is
an habitual drunkard, shall be liable on conviction on indictment, or if
he consents to be dealt with summarily (g), on summary conviction, to
be detained for a term not exceeding three years in any certified inebriate
reformatory the managers of which are willing to receive him (gg).

(2) The Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), shall
apply to proceedings under this section as if the offence charged were
specified in the second column of the first schedule to the Act ' (h).

If the accused elects to be tried on indictment under sub-sect. 2, the
Court of trial cannot impose any punishment for the offence of which
he is then convicted, but can only deal with him as an habitual drunkard.

By the Inebriates Act, 1899 (62 & 63 Vict. c. 35), s. 1, the costs of a
prosecution or indictment under the above section are payable out of the
local rate (vide post, Book XII., Chapter V.).

Sects. 3-12 of the Act of 1898 provide for the establishment and
regulation of state inebriate reformatories (i), and for certification and
regulation of inebriate reformatories maintained by county or borough
councils or private enterprise (/).

(g) Under 42 & 43 Vict. c. 49, s. 12, the of indictable offences by adults by their

consent is a. condition precedent to the consent.

right to try summarily. Commissioner of (i) Prison Commissioners' Report (Pari.

Police V. Donovan [1903], 1 K.B. 895 ; Pap., 1908, c. 3738), p. 58, with reference to

19 Cox, 435. the State inebriate reformatories at Ayles-

(jgr) But not also to imprisonment. R. v. bury and Warwick.

Briggs [1909], 1 K.B. 381. (j) See Report on working of Inebriates

(h) Which relates to the summary trial Acts (Pari. Pap. 1908, co. 4438, 4439).

246

Of Punishments.

[BOOK I.

First Schedule.

Being found drunk in a highway or other-
public place, whether a building or not, or on
licensed premises.

Being guilty while drunk of riotous or dis-
orderly behaviour in a highway or other public
place, whether a building or not.

Being drunk while in charge, on any highway
or other public place, of any carriage, horse,
cattle, or steam-engine.

Being drunk while in possession of any loaded
firearms.

Eefusing or failing when drunk to quit
licensed premises when requested.

Refusing or failing when drunk to quit any
premises or place licensed imder the Refresh-
ment Houses Act, 1860, when requested.

Being found drunk in any street or public
thoroughfare within the metropolitan police
district, and being guilty while drunk of any
riotous or indecent behaviour.

Being drunk in any street and being guilty
of riotous or indecent behaviour therein.

Being intoxicated while driving a hackney
carriage.

Being drunk during employment as a driver
of a hackney carriage, or as a driver or con-
ductor of a stage carriage in the metropolitan
police district.

Being drunk and persisting, after being"
refused admission on that account, in attempt-
ing to enter a passenger steamer.

Being drunk on board a passenger steamer,
and refusing to leave such steamer when
requested (k).

Licensing Act, 1872
(35 & 36 Vict. c. 94),
s. 12.

Licensing Act, 1872
(35 & 36 Vict. c. 94),
s. 18.

Refreshment Houses
Act, 1860 (23 & 24 Vict,
c. 2), s. 41.

Metropolitan Police
Act, 1839 (2 & 3 Vict,
c. 47), s. 58.

Town Police Clauses
Act, 1847 (10 & 11 Vict,
c. 89), s. 29.

Town Police Clauses
Act, 1847 (10 & 11
Vict. c. 89), s. 61.

London Hackney
Carriages Act, 1843 (6
& 7 Vict. c. 86), s. 28.

Merchant Shipping
'Act, 1894 (57 & 58
Vict. c. 60), s. 287 (k).

All similar offences in local Acts (I).

{k) By the Licensing Act, 1902 (2 Edw.
VII. c. 78, s. 2 (3)), there is added to the
schedule the offence of being drunk in a
highway or public place or on licensed
premises while in charge of a child appar-
ently under the age of seven.

(i!) The schedule also includes the fol-
lowing enactments relating to Scotland or
Ireland: 55 & 56 Vict. o. 55, as. 380,

381 (S) ; 6 & 7 Will. IV. c. 38, s. 12 (I) ;
5 & 6 Vict. c. 24, s. 15 (Dublin) ; 23 & 24
Vict. 0. 107, s. 42 (I.). Two scheduled
enactments relating to Scotland, 25 & 26
Vict. 35, S3. 19-23, were repealed in 1903
and replaced by 3 Edw. VII. c. 25, s. 70
(1), (2), which is to be read as incorporated
in the above schedule (subs. 3).

CHAP. VII.] General Rules. 247

Sect. XIII. — General Kules as to Other Punishments.

Persons under sixteen may not be sentenced to death or to penal
servitude for any offence. As to the substituted penalties, vide ante,
pp. 205, 231.

Felonies.— By the Criminal Law Act, 1827 (7 & 8 Geo. IV. c. 28), s. 8,
' Every person convicted of any felony, not punishable with death (m), shall
be punished in the manner prescribed by the statute or statutes specially
relating to such felony (n) ; and every person convicted of any felony, for
which no punishment hath been or hereafter may be specially provided,
shall be deemed to be punishable under this Act, and shall be liable, at
the discretion of the Court, to be transported beyond the seas for the
term of seven years or to be imprisoned for any term not exceeding two
years : (nn)

By sect. 11 (o), ' If any person shall be convicted of any felony not
punishable with death, committed after a previous conviction of felony (p),
such person shall on such subsequent conviction be liable ... to be
transported beyond the seas (q) for life, or for any term not less than
seven years . . .' (r).

These provisions do not apply to persons under sixteen (vide ante,
p. 231).

By the Larceny Act, 1861 (24 & 25 Vict. c. 96), s. 7 (s), ' Whosoever
shall commit the offence of simple larceny after a previous conviction
for felony, whether such conviction shall have taken place upon an indict-
ment, or under the provisions of the Act 18 <& 19 Vict. c. 126 (t), shall be
liable, at the discretion of the Court, to be kept in penal servitude for any
term not exceeding ten years ... (m), or to be imprisoned . . . and,
if a male under the age of sixteen years, with or without whipping ' (v).

Larceny after Conviction of an Indictable Misdemeanor. — Sect. 8.
' Whosoever shall commit the offence of simple larceny, or any offence
hereby made punishable like simple larceny (w) after having been

(m) See ante, p. 206. tion of felony was reduced to a term of

(n) For the special statutes, see the penal servitude for not less than four nor

titles relating to particular felonies. more than ten years. This enactment was

{nn) As to minimum term of penal servi- repealed in 1861 (24 & 25 Vict. c. 95, s. I),

tude and as to hard labour, vide ante, and replaced by that set out in the text.

pp. 211, 212. (i) By 18 & 19 Vict. c. 126, justices of

(o) A like provision is made as to Ireland the peace might convict persons guilty of

by 9 Geo. IV. c. 31, s. 21. larceny, &c., summarily, and this clause

(p) Superseded as to ' larceny ' by the renders persons so convicted, who after-
enactments specified infra, and as to wards are guilty of larceny, liable to the
certain coinage offences by 24 & 25 Vict. same punishment as if they had been pre-
0. 99, ss. 12, 21. viously convicted upon an indictment for

(g) Now penal servitude, vide ante, p. 211. felony. It is superseded by the Summary

(r) Now not less than three years, or Jurisdiction Act of 1879 (42 & 43 Vict. c. 49).

imprisonment with or without hard labour (a) As to other punishments, see 54 &

for not more than two years. 54 & 55 Viet. 55 Vict. c. 69, s. 1, ante, pp. 211, 212, and

c. 69, s. 1 {ante, pp. 211, 212). The rest as to police supervision, see ante, p. 224.

of the section was repealed, as to whip- (v) The omitted portions were repealed in

ping in 1888 (S. L. R.), and as to minimum 1893 (S. L. R. No. 2). As to whipping, see

term of imprisonment in 1893 (S. L. R. ante, p. 215.

No. 2). {w) That is by ss. 31, 32, 33, and 36.

(«) By s. 12 of the Penal Servitude Act, S. 8 does not apply to a, conviction under

1853 (16 & 17 Vict. o. 99), the punishment s. 88 for false pretences. R. v. Horn, 15

in case of larceny after a previous convio- Cox, 205.

248 Of Punishments. [book i.

previously convicted of any indictable misdemeanor punishable under
this Act, shall be liable, at the discretion of the Court, to be kept in penal
servitude for any term not exceeding seven years ... or to be imprisoned
. . . and, if a male under the age of sixteen years, with or without
whipping '(x).

Larceny after Two Summary Convictions. — Sect. 9. ' Whosoever
shall commit the offence of simple larceny, or any offence hereby made
punishable like simple larceny, after having been twice summarily
convicted of any of the offences punishable upon summary conviction,
under the provisions contained in . . . the Act of the session held
in the tenth and eleventh years of Queen Victoria, chapter eighty-
two, ... or in this Act or the Malicious Damage Act, 1861 (24 & 25
Vict. c. 97) (whether each of the convictions shall have been in
respect of an offence of the same description or not, and whether such
convictions or either of them shall have been or shall be before or
after the passing of this Act), shall be guilty of felony, and being con-
victed thereof shall be hable, at the discretion of the Court, to be kept
in penal servitude for any term not exceeding seven years ... or to be
imprisoned . . . and, if a male under the age of sixteen years, with or
without whipping ' {y).

Punishment of Principals in Second Degree, and Accessories. — The
Accessories and Abettors Act, 1861 (24 & 25 Vict. c. 94, ss. 4, 8), and each
of the Criminal Law Consolidation Acts of 1861 (24 & 25 Vict. c. 96, s. 98 ;
c. 97, s. 56 ; c. 98, s. 49 ; c. 99, s. 35 ; and c. 100, s. 67), enact that ' In
the case of every felony punishable under this Act, every principal in
the second degree, and every accessory before the fact, shall be punish-
able in the same manner as the principal in the first degree is by this Act
punishable (2), . . . and whosoever shall counsel, aid, or abet the com-
mission of any indictable misdemeanor punishable under this Act shall
be liable to be proceeded against, indicted, and punished as a principal
offender ' (a).

Cumulative Sentences. — By the Criminal Law Act, 1827 (7 & 8
Geo. IV. c. 28), s. 10, 'Wherever sentence shall be passed for felony on
a person already imprisoned under sentence for another crime, it shall
be lawful for the Court to award imprisonment for the subsequent offence,
to commence at the expira,tion of the imprisonment to which such person
shall have been previously sentenced ; and where such person shall be

(x) This section was new in 1861. See c. 92. It is not clear why the reference to

R. V. Garland, 11 Cox, 222. The omitted 10 & 11 Vict. c. 82 remains, as that Act

portions were repealed in 1893 (S. L. R. was repealed in 1879 (42 & 43 Vict. c. 49,

No. 2), vide ante, pp. 211, 212. s. 55), not why 14 & 15 Vict. u. 92 was

(y) Taken from 12 & 13 Vict. o. 11, s. 3, struck out, as s. 6 is not repealed. As to

and extended so as to include persons twice minimum term of penal servitude, see

summarily convicted under 14 & 15 Vict. p. 211. As to hard labour, see ante, p. 212.

c. 92, ss. 3, 4, 5, & 6 (I), or the Malicious As to whipping, see ante, p. 215.
Damage Act, 1861, or the Larceny Act, (z) As to accessories after the fact,

1861. The omitted portions of s. 9 were vide ante, p. 126

repealed in 1893 (S. L. R. No. 2). They (a) This clause is omitted in the Coinage
included references to a number of statutes Offences Act, 1861, but the omission is sup-
now repealed, viz., 7 & 8 Geo. IV. cc. 29, plied by s. 8 of the Accessories, &o.. Act,
30 ; 9 Geo. IV. cc. 55, 66 ; 11 & 12 Vict. 1861, ante, p. 138.
u. 59 ; and to ss. 3, 4, 6, and 6 of 14 & 15 Vict.

CHAP. VII.] General Rules. 249

already under sentence, either of imprisonment or of transportation (b),
the Court, if empowered to pass sentence of transportation (b), may award
such sentence for the subsequent offence, to commence at the expiration
of the imprisonment or transportation (b) to which such person shall
have been previously sentenced, although the aggregate term of
imprisonment or transportation (b) respectively may exceed the term
for which either of those punishments could be otherwise awarded.' The
rule above laid down as to felony applies at common law to misdemeanor (c).

So that, where a person is convicted of several offences at the same
time, of the same kind, he may be sentenced to several terms of penal
servitude or imprisonment one after the conclusion of the other (d).
Where an indictment for perjury contained two counts charging perjury
on two different occasions but with the same object, it was held that they
were distinct offences which might, however, be included in one indict-
ment ; that a general verdict of guilty was good, and that the fuU punish-
ment of seven years' penal servitude might be inflicted for each offence,
the second term to begin at the termination of the first (e).

As to the effect of conviction of a person out on ticket of leave, see
27 & 28 Vict. c. 47, s. 9, as amended by 54 & 55 Vict. c. 69, s. 3, vide ante,
p. 220.

Misdemeanors. — As a general rule all offences less than felony,
which exist at common law, and have not been regulated by any par-
ticular statute, are punishable within the discretion of the Court (/).
Fine, and imprisonment, without hard labour {ante, p. 212), are the
remaining common-law punishments in cases of misdemeanor. On
the abolition of the punishment of the pillory (g), it was provided by
56 Geo. III. c. 128, s. 2, that the Courts might pass such sentence of
fine or imprisonment, or of both, in lieu of a sentence of pillory, as to
the Court should seem proper. Whipping also was ordinarily awarded
in former times, but it is not now adjudged except under statutory
authority. The offender may, at common law, in addition to fine
and imprisonment, be required to find sureties to keep the peace or be .
of good behaviour (h).

The common-law punishments may be imposed where a statute
declares an offence to be a misdemeanor but prescribes no specific
punishment, and in cases where disobedience to the command or prohibi-
tion of a statute is held by the Courts to be a misdemeanor (^').

(6) Now penal servitude. See 20 & 21 own. Since tlie changes in her status and

Vict. c. 3, s. 6, ante, p. 211. capacity effected by the Married Women's

Cutbush, L. R. 2 Q.B. 379. B. v. Robin- have practically, i£ not absolutely, dis-

son, 1 Mood. 413. Castro v. R., 6 App. Cas. appeared.

229. Concurrent sentences of penal servi- (g) Infra.

tude and imprisonment are thought unde- (h) R. v. Dunn, 12 Q.B. 1026. R. v.

snable. R. v. Jones, 1 Or. App. R. 196. R. Hart, 30 St. Tr. 1131. This rule was

V. Martin, 1 Cr. App. B. 209. applied even in the case of a married

{d) R. V. Williams, 1 Leach, 529, 536. woman (R. v. Thomas, uhi sup.), although

See Gregory f. R., 15 Q.B. 974; 19 L. J. it was considered that she could not herself

Q.B. 366. enter into a recognisance. Lee v. Lady

(e) Castro ti. R., 6 App. Cas. 229. Baltinelas, Styles, 475. Bennett. Watson,

(/) 1 Chit. Cr. L. 710. R. v. Thomas, 3 M. & S. 1. Elsy v. Mawdit, Styles, 226.

cas. K.B. temp. Hardw. 278. It used to Anon., Styles, 321. See 1 Chit. Cr. L. 100.

be held that a married woman could not (i) Vide ante, o. ii, pp. 11 ei seq.
be fined, as she had no personalty of her

250 Of Punishments. [book i.

Sect. XIV. — Obsolete Punishments.

Pillory. — On conviction of miademeanor it was not unusual to sentence
the offender to the pillory (j). The punishment was recognised by the
common law, and in some cases imposed by statute (k) ; but was partially
abolished by the Pillory AboHtion Act, 1816 (56 Geo. 3, c. 138) (l), and
wholly abolished in 1837 (m). By sect. 2 of the Act of 1816, ' in all cases
where the punishment of the pillory has hitherto (i.e. before July 2, 1816)
formed the whole or a part of the judgment to be pronounced, it shall and
may be lawful for the Court before whom such offence is tried to pass such
sentence of fine or imprisonment, or of both, in lieu of the sentence of
pillory as to the said Court shall seem most proper ; provided that nothing
herein contained shall extend, or be construed to extend, in any manner to
change, alter, or affect any punishment which may now be by law inflicted
in respect of any offence except only the punishment of pillory.'

Stocks. — At common law it is said that every township was bound to
provide stocks in which the constable might confine offenders for security
but not by way of punishment. By statutes most if not all now repealed
setting in the stocks was authorised by way of punishment after con-
viction (n).

Ducking Stool. — The punishment of the ducking stool for scolds has
not been formally abolished (o).

Sect. XV. — Civil Effects of Conviction.
Treason and Felony : Forfeitures for Felony, &c.

The Forfeiture Act, 1870 (33 & 34 Vict. c. 23), recites that it is expedient
to abolish the forfeiture of lands and goods for treason and felony, and
to otherwise amend the law relating thereto. By sect. 1, ' From and after
the passing of this Act, no confession, verdict, inquest, conviction, or
judgment of, or for any treason or felony, or fdo de se, shall cause any
attainder or corruption of blood, or any forfeiture, or escheat, provided
that nothing in this Act shall affect the law of forfeiture consequent upon
outlawry' (p).

Sect. 2. ' Provided nevertheless, that if any person hereafter convicted
of treason or felony, for which he shall be sentenced to death, or penal
servitude, or any term of imprisonment, with hard labour, or exceeding
twelve months, shall at the time of such conviction hold any inilitary
or naval office, or any civil ofl&ce under the Crown, or other public
employment, or any ecclesiastical benefice, or any place, office, or
emolument in any university, college, or other corporation, or be entitled
to any pension, or superannuation allowance, payable by the public,

(?) See 3 Co. Inst. 219. 1 Pike Hist. Cr. (m) By 7 WiU. IV. and 1 Vict. e. 23 (rep.),

vol. i. 213, 237-8 ; vol. ii. 285, 378. For (n) 2 Hawk. P. C. c. 73. See Andrews,

the form of the pillory and the mode of Old Time Punishments (1890), pp. 120-137,

executing the sentence, see Andrews, Old where evidence is given of the use of the

Time Punishments (1890), 64-103. stocks in Anglo-Saxon times.

{k) See 5 Eliz. o. 9, s. 1 (' Perjury '), (o) Vide^^post, Bk. xi. c. ii.

post, p. 526. (p) As to procedure on outlawry, see

(I) Eaton was pilloried for blasphemy in Crown Office Rules, 1906, rr. 88-110-

1812. Vide 31 St. Tr. 958. Short & Mellor;;_Cr. Pr. (2nd ed.) 270, 525.

CHAP. VII.] Civil Effects of Conviction. 251

or out of any public fund, such office, benefice, employment, or place,
shall forthwith become vacant, and such pension or superannuation
allowance or emolument shall forthwith determine and cease to be payable,
unless such person shall receive a free pardon from His Majesty within
two months after such conviction, or before the filling up of such office,
benefice, employment, or place, if given at a later period ; and such
person shall become, and (until he shall have suffered the punishment
to which he had been sentenced, or such other punishment as by competent
authority may be substituted for the same, or shall receive a free pardon
from His Majesty) shall continue thenceforth incapable of holding any
military or naval office, or any civil office under the Crown, or other
public employment, or any ecclesiastical benefice, or of being elected,
or sitting, or voting as a member of either House of Parliament, or of
exercising any right of suffrage or other parliamentary or municipal
franchise whatever within England, Wales, or Ireland ' (q).

By the Children Act, 1908 (8 Edw. VII. c. 67), s. 101, ' The con-
viction of a child or young person shall not be regarded as a conviction of
felony for the purposes of any disqualification attaching to felony ' (qq).

Conviction of treason or felony, or outlawry, or criminal process, or
conviction of infamous crime, unless pardoned, disqualifies the offender
from serving as a juror (r).

By sect. 4 of the Act of 1870, ' it shall be lawful for any such Court as
aforesaid, if it shall think fit upon the application of any person aggrieved,
and immediately after the conviction of any person for felony, to award
any sum of money, not exceeding one hundred pounds, by way of satis-
faction or compensation for any loss of property suffered by the applicant
through or by means of the said felony, and the amount awarded for
such satisfaction or compensation shall be deemed a judgment debt
due to the person entitled to receive the same from the person so con-
victed, and the order for payment of such amount may be enforced
in such and the same manner as in the case of any costs ordered by the
Court to be paid under the last preceding section of this Act ' (s).

By sect. 5, ' The word " forfeiture," in the construction of this Act,
shall not include any fine or penalty imposed on any convict by virtue
of his sentence' (t).

By sect. 32, ' Provided always that nothing in this Act shall be
deemed to alter or in any wise affect the law relating to felony in
England, Wales, or Ireland, except as herein is expressly stated.'

By the Wine and Beerhouse, &c., Act, 1870 (33 & 34 Vict. c. 29), s. 14,
' Every person convicted of felony shall for ever be disqualified from selling
spirits by retail, and no licence to sell spirits by retail shall be granted to

(g) As to ordering a person convicted of to penal servitude for treason or felony,

treason or felony to pay the costs of {the while they are^ in prison undergoing their

prosecution, see post, Bk xii. c. v. ' Costs.' sentence. The sections cease to apply

{qq) A re-enactment of 1 Edw. VII. c. 20, if they die or become bankrupt, or receive

13. 1. a pardon (s. 7), and do not apply to

(r) 33 & 34 Vict. c. 70, ss. 7, 10 (E) ; 34 property acquired while at large on licence

& 35 Vict. c. 65, s. 7 (I) ; 39 & 40 Vict. (s. 30). As to these sections, see Carr v.

0. 78, s. 21 (I). Anderson [1903], 1 Ch. 90 ; 2 Ch. 279 ;

(«) See B. V. Lovett, 11 Cox, 602. and Gaskell & Walters' Contract [1906],

(t) Ss. 6-30 regulate the administration, 2 Ch. 1 ; and see 8 Edw. VII. o. 15, post,

&o., of the property of convicts sentenced Bk. xii. o. v.

252 Of Punishments. [book i.

any person who shall have been so convicted- as aforesaid ; and if any
person shall, after having been so convicted as aforesaid, take out or
have any licence to sell spirits by retail, the same shall be void to all
intents and purposes ; and every person who, after being so convicted as
aforesaid, shall sell any spirits by retail in any manner whatever, shall
incur the penalty for doing so without a licence * (m).

In the case of convictions of felony not falling within sects. 2, 6-27 of
the Act of 1870, and in the case of conviction for misdemeanor, the civil
rights of the offender in respect of his property are not affected. But
conviction and imprisonment for crime disqualify the offender from
holding certain offices, e.g., district councillor or guardian of the poor (t)).

Sect. XVI. — Pardon or Eemission or Mitigation op Punishment.

In passing a sentence on conviction, the Court should take into
consideration all offences of a similar nature already committed by the
prisoner, and of which he admits the commission, but for which he has
not been actually tried {vv).

When a sentence involving punishment has been passed and duly
recorded, the Court of trial has no power to remit it. On appeal to the
Court of Criminal Appeal the punishment may be reduced or increased
by the appellate Court (w).

The power to pardon the offence, or commute or remit or reduce the
punishment or fine for a criminal offence, is part of the prerogative of the
Crown (x), which cannot be delegated to a subject as to matters in England
and Wales (27 Hen. VIII. c. 24, s. 1), and is distinct from the provisions
made under the statutes and rules relating to convict prisons and local
prisons which authorise the absolute or conditional release of offenders
before the expiration of any term of penal servitude or imprisoiiment
lawfully adjudged.

A. Pardon.

By virtue of the prerogative of mercy the Crown may grant a free
pardon for an offence, which restores the offender to the status which he
held before conviction (y).

A free pardon may be granted either before or after trial. Where a
pardon is granted at any one's suggestion, the fact of the suggestion and
the name of the person making it should be in the pardon (27 Edw.JII.
St. 1, c. 2) ; and pardons for treason, murder, or rape are not to be
granted unless the offence is specified in the pardon (13 Rich. II. st. 2,
c. 1 ; 16 Rich. II. c. 6. See 1 C. & P. 456, note to R. v. Beacall).

At common law pardons must be under the Great Seal (z).

(m) See Hay v. Tower Justioes, 24 Q.B.D. s. 11 ; nor it would seem in the case of

561. attachment or committal in the case of

{v) For statutes, see Chronological Index civil contempts of Court. Criminal con-
to Statutes, tit. ' Disqualification,' tempts of Court may be pardoned or the

(vv) R. ■;;. Syres, 73 J.P. 13. R. v. sentence remitted. Re Bahama Islands

Taylor, 2 Cr. App. R. 158. [1893], A.C. 138. For other Umitations

(w) 7 Edw. VII. 0. 23, ss. 4 (3), 19, on the power to pardon, see 2 Hawk. c. 37.

post, Bk. xii. c. iv. (y) Hay v. Tower Justices, 24 Q.B.D. 561.

(x) The power to remit does not extend Leyman v. Latimer, 3 Ex. D. 15, 352. And

to the penalties of praemunire under the see 33 & 34 Vict. c. 23, s. 2, ante, p. 250.

Habeas Corpus Act, 1679 (31 Car. II. ^. 2), (u) R. v. Boyes, 30 L. J. Q.B. 301.

CHAP. Vll.] Pardon or Remission of Punishment. 253

Conditional Pardon.— The Crown may grant a pardon on conditions.

A conditional pardon for treason may be granted and the condition
enforced even if the convict do not assent to it {a).

A pardon granted on a void condition is void (&).

By the Criminal Law Act, 1827 (7 & 8 Geo. IV. c. 28), s. 13 (c), ' Where
the King's Majesty shall be pleased to extend his royal mercy to any
offender convicted of any felony punishable with death or otherwise, and
by warrant under his royal sign manual {cc), countersigned by one of his
principal secretaries of state, shall grant to such offender either a free
or a conditional pardon, the discharge of such offender out of custody in
the case of a free pardon, and the performance of the condition in the case
of a conditional pardon, shall have the effect of a pardon under the Great
Seal for such offender, as to the felony for which such pardon shall be so
granted : provided always, that no free pardon, nor any such discharge
in consequence thereof, nor any conditional pardon, nor the performance
of the condition thereof, in any of the cases aforesaid, shall prevent or
mitigate the punishment to which the offender might otherwise be lawfully
sentenced on a subsequent conviction for any felony committed after the
granting of any such pardon.'

By the Penal Servitude Act, 1853 (16 & 17 Vict. c. 99), s. 5, 'When-
ever His Majesty, or the lord lieutenant or other chief governor or gover-
nors of Ireland for the time being, shall be pleased to extend mercy to any
offender convicted of any offence for which he may be liable to the
punishment of death, upon condition of his being kept to penal servitude
for any term of years, or for life, such intention of mercy shall have the
same effect and may be signified in the same manner, and aU courts,
justices, and others shall give effect thereto and to the condition of the
pardon in like manner, as in the cases where His Majesty, or the lord
lieutenant or other chief governor or governors of Ireland for the time, ia
or are now pleased to extend mercy upon condition of transportation
beyond seas, the order for the execution of such punishment as His
Majesty, or the lord lieutenant or other chief governor or governors of
Ireland for the time being, may have made the condition of her, his, or
their mercy being substituted for the order for transportation ' {d).

The Civil Eights of Convicts Act, 1828 (9 Geo. IV. c. 32), s. 3, after
reciting that it is expedient to prevent all doubts respecting the civil
rights of persons convicted of felonies, not capital, who have undergone
the punishment to which they were adjudged, enacts that : ' Where any
offender hath been or shall be convicted of any felony not punishable
with death, and hath endured or shall endure the punishment to which
such offender hath been or shall be adjudged for the same, the punishment
so endured hath and shall have the like effect and consequences as a
pardon under the Great Seal as to the felony whereof the offender was so

(a) See 12 & 13 Vict. c. 27 (I). Act as authority to discharge a prisoner.

(6) Canadian Prisoners' case [1839], See 1 Leach, 74.

3 St. Tr. (N. S.) 1034. (d) Similar provisions as to pardon eon-

s. 3. As to pardon conditional on im- 5 Geo. IV. c. 84, s. 3 (not repealed, but of

prisonment, see 11 Geo. IV. & 1 WiU. IV. no present importance). That section

c. 39, s. 7, extends to Scotland. As to Ireland, see

(cc) Sign manuals were used before this 12 & 13 Vict. u. 27.

254 Of Punishments. [BOOK i.

convicted : provided always, that nothing herein contained, nor the
enduring of such punishment, shall prevent or mitigate any punishment
to which the offender might otherwise be lawfully sentenced on a
subseciuent conviction for any other felony.'

B. Respite and Reprieve.

By respite in criminal cases is usually meant postponement of judg-
ment or sentence till a later date (e), e.g., where a case is stated for the
consideration of the Court of Criminal Appeal, or an appeal is pending
undpr the Criminal Appeal Act, 1907(/"). Where judgment has been
respited for a capital offence, it may be given by subsequent justices
of gaol deUvery for the same county (g) .

By ' reprieve ' is meant suspension of the execution of a sentence of
death (h) : (a) ex mandato regis, in exercise of the royal prerogative of
mercy ; (6) at the discretion of the Court, ex arbitrio judicis (except on
conviction of murder), to enable the offender to apply for pardon or
commutation of sentence {i) ; (c) ex necessitate legis, where some fact is
disclosed entitling the offender to delay execution of sentence, e.g., where
a woman convicted of murder is found to be pregnant (j), or where the
offender becomes insane between judgment and execution (k).

Under the Criminal Appeal Act, 1907, the execution of a judgment,
subject to any special order, is suspended from the time of giving
notice of appeal, and where an appeal is brought by leave or of right,
until the appeal is determined (Z).

e) Keen v. R., 10 Q.B. 928. & 1 Vict. c. 77, ss. 3, 4, ante, p. 207 ; and

(/) See post, Bk. xii. c. iv. 24 & 25 Viot. o. 100, s. 2.
(g) 1 Edw. VI. c. 7, =. 5. (j) 3 Co. Inst. 17 ; 1 Chit. Cr. L. 759.

{h) 2 Hawk. i;. 51, s. 8 ; 1 Chit. Cr. L. (k) 3 Co. Inst. 4 ; 1 Chit. Cr. L. 761.

758. ' (0 7Edw. VII. c.23,ss.7(2),14,21,po««,

(j) See 4 Geo. IV. u. 48, and 7 Will. IV. Bk. xii. c. iv.

( 254a )

CANADIAN NOTES.

OF PUNISHMENTS.

Sec. 1. — Death.

The offences to which the penalty of death is attached are as
follows: — (a) Treason, see. 74(2) ; (&) Levying "War in Canada, sec.
77; (c) Piracy accompanied by violence to person, sec. 137; (d) Mur-
der, sec. 263 ; (e) Rape, sec. 299.

Execution of a pregnant woman may be arrested. Code sec. 1008.

In all cases where an offender is sentenced to death, the sentence or
judgment to be pronounced against him shall be that he be hanged by
the neck until he be dead. Code see. 1062.

Report of the sentence of death must forthwith be made to the
Secretary of State. Code sec. 1063.

If delay after sentence be necessary, a Judge of the Court in which
the conviction took place may reprieve the offender. Code sec. 1063 (2) .

After judgment the offender shall be separately confined. Code
sec. 1064.

Only certain persons may be present at an execution. Code sees.
1066, 1067.

Judgment of death shall be carried into effect within the walls of
the prison in which the offender is confined. Code see. 1065.

A certificate of death shall be given by the medical officer. The
sheriff, gaoler, and other persons present if required shall sign a
declaration. Code sec. 1068.

Deputies may act for the sheriff, gaoler, or medical officer. Code
sec. 1069.

An inquest shall be held within twenty-four hours. Code see. 1070.

The body shall be buried within the walls of the prison. Code
sec. 1071.

Irregularities do not make an execution illegal. Code sec. 1073.

The certificate must be sent to the Secretary of State, and printed
copies exhibited at or near the principal entrance to the prison. Code
sec. 1072.

Execution under Sentence of High Court. — In Cashell's case
(1903), 40 C.L.J. 54 (N.W.T.), an order was made by Sifton, C.J.,
postponing the execution for a week, the prisoner having broken jail
and escaped.

2546 Imprisonment. [book i.

In an unreported Ontario case (Reg. v. Young (1876)) the pri-
soners were, on March 27, 1876, found guilty of murder and were
sentenced to be hanged on June 21 following. They effected their
escape, and continued at large until midsummer, and were then re-
taken.

Counsel for the Crown moved before the full Court on August 27,
for writs of habeas corpus and certiorari to bring up the prisoners from
the jail at Cayuga, and the indictment against them, for the purpose
of applying for a new sentence of death ; which, on return made to the
writs, was passed upon them. 40 C.L.J. 131.

The sentence may be commuted. Code sec. 1078.

Sec. 4. — Imprisonment.

The Dominion Parliament has the constitutional power to establish
prisons for the incarceration of offenders against Dominion laws. Re
Goodspeed (1903), 7 Can. Cr. Gas. 240 (N.B.)

• The Courts of a province in which is situate a penitentiary common
to that and another province, should not enquire on habeas corpus into
the validity of an indictment upon which the prisoner was tried in
the other province and sentenced to imprisonment in such penitentiary.
R. V. "Wright (1905), 10 Can. Cr. Gas. 461 (N.B.).

If the certificate of sentence to imprisonment in a penitentiary is
irregular for omission of the date of sentence leave may be given on a
habeas corpus motion to return an amended certificate correcting the
omission. R. v: Wright, 10 Can. Cr. Gas. 461.

The certified copy of sentence is sufScient warrant for the imprison-
ment of a convict in the penitentiary and it is not necessary that, it
should contain every essential averment of a formal conviction. Where
the venue is mentioned in the margin of a commitment, in the case of
an offence which does not require local description, it is not necessary
that the warrant should describe the place where the offence was com-
mitted. A warrant of commitment (or certified copy of sentence)
following a conviction on indictment, need not state the time from
which the term of imprisonment shall begin to run, as both under the
Penitentiaries Act and the Prisons Act, terms of imprisonment com-
mence on and from the day of the passing of the sentence. Ex parte
Smitheman (1904), 35 Can. S.C.R. 189, 490, 9' Can. Cr. Gas. 10, 17.

Where no punishment is specially provided, a person convicted of
an indictable offence, is liable to imprisonment for five years. Code
sec. 1052.

Everyone summarily convicted of an offence for which no punish-
ment is specially provided is liable to a penalty not exceeding fifty
dollars, or to imprisonment not exceeding ten months, with or without
hard labour, or to both. Code sec. 1052(2).

CHAP. VII.] Punishments. 254c

Second Offence. — Everyone convicted of an indictable offence, not
punishable with death, committed after previous offence, is liable to
imprisonment for ten years, unless some statute directs some other
punishment. Code sec. 1053.

But a person who, after a previous conviction for any indictable
offence, is convicted of an offence under Part VII. of the Code for
which a punishment on a first conviction is less than fourteen years'
imprisonment is liable to fourteen years ' imprisonment. Code sec. 4fi5.

"Where a statute of Canada imposes a fine and also imprisonment,
the punishment is in the discretion of the Court, which is not bound to
inflict both, but may inflict either one or the other 6f the two kinds of
punishment by virtue of section 1028. R. v. Robidoux (1898), 2 Can.
Cr. Cas. 19 (Que.)

Second Offence — Certificate of Previous Conviction, etc. — Under
the Ontario Liquor License Act, R.S.O. 1897, ch. 245, sec. 101, the
question of the identity of the accused, charged with a second offence,
with the person previously convicted is one for the magistrate to
determine upon the evidence before him apart from his personal recol-
lection, but a certificate of the previous conviction in the same locality
of a person of the same name is some evidence of identity.

A certificate under the Liquor License Act of a prior conviction
thereunder is not aff'ected by Code sec. 982, under which evidence of
identity apart from and in addition to a certificate of the prior con-
viction is required on the trial for an indictable offence if a prior con-
viction of the accused is to be proved.

Per Britton, J. — Qusere, whether Code sec. 982 has any application
other than to the trial of indictable offences. The King v. Leach et al.,
14 Can. Cr. Cas. 375.

Maximum Term Shortened. — Everyone who is liable to imprison-
ment for life, or for any term of years, or other term, may be sen-
tenced to imprisonment for any shorter term; provided that no one
shall be sentenced to any shorter term of imprisonment than the mini-
mum term, if any, prescribed for the offence of which he is convicted.
Code sec. 1054.

For Terms Less than Two Years. — Sentence for imprisonment for
less than two years, unless some other place is named, shall be in the
common gaol or place of confinement, not a penitentiary, in the place
in which the sentence is pronounced. A person sentenced at the same
sittings to penitentiary and gaol, or sentenced for less than two years
while in a penitentiary, may.be sentenced to serve in a penitentiary.
In Manitoba offenders sentenced to terms of less than two years may be
imprisoned in any gaol in tjie province. Code sec. 1056.

254:d Whipping. [BOOK i.

habeas corpus after three months' imprisonment. There is no pre-
sumption that sentences passed at the one time are to be concurrent.
Ex parte Bishop (1895), 1 Can. Cr. Gas. 118 (N.B.).

With or Without Hard Labour. — An offender convicted
(a) of an indictable offence,

(&) before a Judge of a Superior Court in Saskatchewan or
Alberta ; or

tory; or

(d) before a Judge of the Territorial Court in the Yukon

Territory,
may be sentenced to undergo hard laboilr while imprisoned, in the
discretion of the Court or person passing sentence. In other cases
hard labour may be imposed by the sentence if it be part of the punish-
ment prescribed by law for the offence. Code sec. 1057.

Where the sentence imposed upon a summary trial by consent
before a city stipendiary magistrate for common assault, was, in the
first instance, three months' imprisonment without mention of hard
labour, and the minute of adjudication did not include hard labour,
a formal conviction, including hard labour, and a commitment thereon
in similar terras, are invalid and the accused will be discharged on
habeas corpus. Ex parte Carmiehael (1903), 8 Can. Cr. Cas. 19 (N.S.).

If a statute merely directs imprisonment as the punishment of an
offence, no Court of justice can, in the absence of any general discre-
tionary power to that effect, award hard labour in addition. It is an
additional substantive punishment. Hard labour is in fact a statutable
addition to imprisonment, generally to be found enacted in the Act
creating the offence, sometimes in statutes giving it as a discretionary
power to a Court on awarding imprisonment. R. v. Frawley (1881),
46 U.C.Q.B. 153; R. v. AUbright, 9 P.R. (Ont.) 25.

Imprisonment in Default, with Hard Labour. — Section 739(2) of
Revised Criminal Code authorizes the imposition of hard labour upon
an imprisonment in default of distress, only where imprisonment with
hard labour in the first instance might have been imposed in addition
to a fine with imprisonment in default of distress or payment. The
King V. Riley, 14 Can. Cr. Cas. 346.

Sec. 5. — Whipping.
The punishment of whipping may be imposed upon persons con-
victed of the following offences: —

(a) Assault upon the King. — Code see. 80.

(b) Burglary When Armed. — Code sec. 457.

Code sec. 301.

(d) Attempt to Have Carnal Knowledge of a Girl under Fourteen
Years of Age. — Code sec. 302.

CHAP. VII. J Fines. 254e

(e) Attempts to Choke, Strangle, or Drug with Intent to Commit
or Assist in Committing an Indictable Offence. — Code sec. 276.

(/) Indecent Assaults upon Females. — Code sec. 292.

{g) Assaults upon Persons with Intent to Commit Sodomy or In-
decent Assaults on Male Persons iy Other Male Persons. — -.Code
sec. 293.

{x) Doing, Attempting or Procuring Acts of Gross Indecency by
a Male Person with Another Male Person. — Code sec. 206.

Provisions for the Carrying into Effect of the Punishment of Whip-
ping.— The instrument is a cat-o '-nine-tails unless the sentence pre-
scribes some other instrument. Whipping may be three times inflicted.
It shall not take place within ten days of discharge. Code sec. 1060.

Females. — Whipping shall not be inflicted on any female. Code
sec. 1061.

Sec. 6. — Fines.

The amount of a fine is in the discretion of the Court, within the
limits fixed by statute. Code see. 1029.

On conviction of an indictable offence punishable by imprisonment
for five years or less, a fine may be imposed in addition to or in lieu
of any punishment otherwise authorized ; and the sentence may direct
imprisonment till the fine is paid, or for not more than five years.
Code sec. 1035(1).

On conviction for an indictable offence punishable with imprison-
ment for more than five years, a fine may be imposed in addition to, but
not in lieu of, any punishment otherwise ordered. In the latter case
also imprisonment in default of payment of the fine may be directed by
the sentence. Code sec. 1035(2). It should be noticed that the
exercise of the power given by this section of the Code is not expressed
to be subject to the provisions of any other statute.

Penalties and forfeitures, when no other mode. is prescribed, are
recoverable, with costs, by civil action at the suit of His Majesty or
of a private party suing for His Majesty and for himself. Where no
other provision is made, one moiety belongs to His Majesty, and the
other to the party suing. Code see. 1038. Actions for penalties must
be brought within two years, except it be otherwise provided. Code
sec. 1141.

One moiety goes to the person who sues in respect of the following

offences : —

(a) Uttering Uncurrent Coin. — Sec. 567.

(b) Possession of Copper Coin Unlawfully Imported or Manufac-
tured.—Sec. 624.

625.

{d) Attempted Illegal Importation of Copper Coin. — Sec. 626.

254/ Punishments. [booic i.

(e) Persuading to Desert the Army or Navy, or Concealing a
Deserter. — See. 82.

(/) Resisting Search Warrant for Deserter. — Sees. 83 and 657.

(g) Receiving Stolen Goods from Soldiers. — See. 438.

(h) Receiving Necessaries from Seamen. — See. 439.

{i) Cruelty to Animals. — See. 542.

(i) Keeping Cockpit. — See. 543.

The Governor in Council may at any time remit any fine or for-
feiture. Code see. 1084. ,

The remission may be on terms as to the payment of costs or other-
wise ; provided that where proceedings have been instituted by private
persons costs already incurred shall not be remitted. Code sec. 1085.

Sec. 7. — Recognizances and Sureties.

A person convicted summarily of an indictable offence, or by any
Court for any offence not punishable with death, may be required in
addition to any other sentence to enter into his own recognizances or
to give security to keep the peace and be of good behaviour, for a term
not exceeding two years, and to imprisonment for not more than one
year, pending the entry into recognizances or giving security. Code
sec. 1058.

It is noteworthy that recognizances or sureties are alternative under
section 1058, and that there is power to impose either in addition to,
but not in lieu of, any other punishment, contrary in both respects to
the provisions enacted in each of the Consolidation Acts of 1861
(British), referred to in page 219 hereof.

A person charged before a justice with an offence punishable on
summary conviction (under Part XV. of the Code), or with making
threats, may, in addition to, or in lieu of, any other sentence, be
ordered to enter into recognizances, or to give security to keep the
peace, and be of good behaviour for a period not exceeding twelve
months, and in default to imprisonment for not more than twelve
months. Code sec. 748,

In this section also the power to order recognizances or security is
alternative only.

Part XXI. of the Code treats of ' ' Render by Sureties and Recog-
nizances. ' '

An application in Nova Scotia under Code sec. 1110 to discharge
from custody a surety arrested in estreat proceedings should be made
to the Judge presiding in criminal sittings and not to the Court
en hanc. Re Pippy, 14 Can. Cr. Cas. 305.

Sec. 8. — Probation of Offenders.

The Ticket of Leave Act, R.S.C. (1906), ch. 150, enacts that the
Governor-General may grant to any convict in a penitentiary, gaol, or

CHAP. VII.] Probation of Offenders. 2Mg

other public or reformatory prison a license to be at large in Canada,
or in a specified part thereof, and may revoke such license. Sec. 2.

The conviction and sentence remain in force despite such license,
but the convict is not liable to imprisonment by reason of his sentence
while the license remains in force. Sec. 3.

If a holder of a license is convicted of an indictable offence his
license is forfeited forthwith. See. 5.

If a holder of a license is convicted of any offence punishable on
summary conviction the license may be revoked. See. 6.

The license issued under the authority of 62-63 -Vict. eh. 49, and by
which a convict while undergoing a term of imprisonment in peni-
tentiary is conditionally allowed at large, may be revoked by the
Governor-General either with or without cause assigned.

The revocation by the Crown, without cause assigned, of such
license works no interruption in the running of the sentence which
shall terminate at the same time as if such license had never been
granted. E. v. Johnson, 4 Can. Cr. Cas. 178.

If a license be revoked or forfeited the holder may be apprehended
(sec. 7(1) ) and recommitted to the place from which he was released
by his license (sec. 7(3)), unless this be in another province, and he
may be imprisoned where apprehended. Sec. 7(3).

In the event of a license being revoked or forfeited, the term to
which the offender was originally sentenced must be served out in the
kind of institution to which he was originally sentenced. Sec. 8.

A licensee must notify the proper officials of the place in which he
resides of his place of residence, and whenever he is about to leave that
place. Sec. 9.

Every male holder of a license must once in each month report him-
self to the Chief of Police or sheriff of the city, town, county or district
in which such holder may be, and such report may be required to be
made personally or by letter. See. 9(2).

Any .person who cannot satisfy the Court that his delay in failing
to notify his place of residence or to report was unavoidable, is guilty
of an offence, and liable on summary conviction to forfeit his license, or
to imprisonment with or without hard labour for a term not exceeding
one year. See. 10.

Any holder failing whenever required to produce his license, or who
breaks any of the other conditions of his license by any act which is not
of itself punishable either upon indictment or summary conviction, is
guilty of an offence, and liable upon summary conviction to imprison-
ment for three months with or without hard labour. See. 11.

Any peace officer may take into custody without warrant any con-
vict who is the holder of such license —

(a) Whom he reasonably suspects of having committed any offence,
or

254/1 Punishments. [BOOK i.

(6) If it appears to such peace officer that such convict is getting
his livelihood by dishonest means, and may take him before a justice to
be dealt with according to law.

2. If it appears from the facts proved before the justice that there
are reasonable grounds for believing that the convict so brought before
hira is getting his livelihood by dishonest means, such convict shall be
guilty of an offence against this Act, and his license shall be forfeited.

3. Any convict so brought before a -justice of the peace may be con-
victed of getting his livelihood by dishonest means, although he has
been brought before the justice on some other charge, or not in the
manner provided for in this section. Sec. 12.

Conditional Release {Suspended Sentence). — Sentence may be sus-
pended in the discretion of the Court in any case in which an offender
suffers a first conviction for an offence punishable with not more than
two years' imprisonment; with the consent of counsel for the Crown
in the prosecution, sentence may also be suspended after conviction
for offences punishable with imprisonment for more than two years.
Code sec. 1081.

The Court shall be satisfied that the offender has a fixed place of
abode or regular occupation. Code sec. 1082. The offender may be
apprehended, brought before the Court or a justice, committed and
tried for his conduct subsequent to release. Code sec. 1083.

Where a release on suspended sentence was in respect of a convic-
tion for keeping a disorderly house, the fact that the accused had again
been brought before the same magistrate on a similar charge which,
however, was not substantiated, does not give the magistrate jurisdic-
tion to impose the sentence which had been suspended in respect of the
first charge. And, semble, a proceeding under see. 1083 to bring up for
sentence an accused person who had been released on suspended sen-
tence, can only be taken at the instance of the Crown. E. v. Siteman
(1902), 6 Can. Cr. Cas. 224.

Where the jury convicted the defendant and the verdict was re-
corded and the offender was, by order of the Court, released on bail to
appear for judgment, it is only upon motion by the Crown that the
recognizance of the defendant and his bail can be estreated in Ontario
or that judgment can be moved against the offender. K. v. Young
(1901), 4 Can. Cr. Cas. 580 (Ont.).

A contract by the accused to indemnify a slirety against liability
under his recognizance is illegal ; but where a deposit of money is made
by the accused with the surety by way of indemnity, the accused can-
not recover it back. Herman v. Jeuehner, 15 Q.B.D. 561.

Where after a summary trial the accused is convicted but is
released on suspended sentence and a recognizance is taken binding the
accused to keep the peace and be of good behaviour, the magistrate has

CHAP. VII. J Suspended Sentence. 254i

no jurisdiction to impose sentence without an information under oath
charging a breach of the recognizance (Code sec. 1083) . R. v. Siteman
(1902), 6 Can. Cr. Cas. 224 (N.S.).

Two Years' Imprisonment. — In R. v. McLennan (No. 1) (1905),
10 Can. Cr. Cas. 1, it appears to have been considered that an offence
"punishable with not more than two years' imprisonment" under the
first sub-section meant an offence so punishable before the Court or
magistrate actually trying the charge. It is submitted that the section
refers to the maximum penalty which the law imposes for the offence,
although the magistrate exercising a power of summary trial may on
account of the special jurisdiction conferred on him be restricted to
a sentence less than two years, and that where such maximum exceeds
two years the concurrence of the Crown counsel is necessary under sub-
see. (2). See note 10 Can. Cr. Cas. 10-13.

"Court." — The "Court" in sec. 1081 means, unless the context
otherwise requires, any superior Court of criminal jurisdiction, any
Judge or Court exercising the "speedy trials" jurisdiction and any
magistrate exercising the "summary trials" jurisdiction. Code sec.
1026. .

Juveniles. — There is also the power under the ' ' juvenile offenders ' '
clauses (Code sees. 800-821), to dismiss the accused if the justices upon
the hearing of a case against a juvenile offender under sixteen years of
age, consider it inexpedient to inflict any punishment. Code see. 813.

Costs. — "Where the person convicted upon a summary trial is re-
leased upon suspended sentence and is directed to pay the informant's
costs, such costs are payable forthwith unless otherwise ordered. The
power under this section to award such costs to be paid "within such
period and by such instalments as the Court directs ' ' does not make it
necessary to divide the costs into instalments. R. v. McLellan (No. 1)
(1905),10Can. Cr. Cas. 1.

Previous Conviction. — The proper time for taking evidence of a
previous conviction to exclude a magistrate 's jurisdiction to release on
suspended sentence is after the finding of guilty on the present charge
and not during the hearing of the charge. If the Crown does not
adduce evidence of a previous conviction, the magistrate may, on his
own initiative, call for the records under his own control and custody
and hold an enquiry upon the question whether the defendant had been
previously convicted before him and on the questions of identity, age
and antecedents of the defendant for the purpose of considering the
appropriate punishment or a release on suspended sentence where the
latter is permissible. Semble, if the magistrate recollects that the
person convicted before him was previously convicted before him he
should proceed with such an enquiry, although the Crown counsel was
content to allow the accused to go on suspended sentence. The King v.
Bonnevie, 10 Can. Cr. Cas. 376.

254; Punishments. [book i.

Sec. 9. — Punishment of Juvenile Offenders.

The Prisons and Reformatories Act, R.S.C.,(1906) ch. 148, provides
for the separation, before trial, while in custody, of young persons
apparently under sixteen years from older persons in custody, and
from all persons undergoing imprisonment.

By section 29 it is provided that offenders whose age does not exceed
sixteen years, who are convicted summarily or otherwise, of an offence
punishable by imprisonment for not more than five years, may be
sentenced to imprisonment in any reformatory prison in the province
in which the conviction takes place, provided that the sentence may in
no case be less than two or more than five years. The prisoners in
reformatories (whether sentenced to hard labour or otherwise) are
liable to perform labour.

Ontario. — Part 2 of the last named Act applies to the Province of
Ontario only. It is provided that any boy apparently under sixteen
convicted of an offence punishable by imprisonment for a period of
three months or longer (but not exceeding five years), may be sen-
tenced to imprisonment in a certified industrial school, for a fixed term,
and also to be kept there for an indefirdte term, provided that the
whole period of detention shall not exceed five years. Sec. 49.

It is further provided that if a boy apparently under sixteen years
has been sentenced and committed to the common gaol for a period not
less than fourteen days, a Judge of a superior or county Court may
sentence such boy to be sent forthwith or at the expiration of his term
in gaol to a certified industrial school for an indefinite term, not
exceeding five years from the commencement of his imprisonment in
the common gaol. Sec. 50.

Boys of thirteen years of age or under may be transferred from a
reformatory or common gaol to a certified industrial school, by warrant
of the Governor-General (with the consent of the Provincial Secre-
tary). This applies whether the boy has been tried summarily or
otherwise. See. 51.

Any boy of thirteen or under convicted either summarily or other-
wise of an offence punishable by imprisonment may be sentenced to
imprisonment in an industrial school for not more than five years, nor
less than two years, provided that he cannot be detained beyond the
age of seventeen years. Sec. 52.

Every boy sentenced or transferred to a certified industrial school
shall be detained there until the end of his fysed term (unless sooner
discharged by lawful authority), and (subject to the laws and regula-
tions) for a period not to exceed five years from the commencement of
his imprisonment. Sec. 53.

Any girl who at the time of her trial appears to the Court to be
under the age of fourteen years, and who is convicted of any offence

CHAP. VII.] Juvenile Offenders. 2547<;

for which a sentence of imprisonment for a term of one month or
longer, but less than five years, may be imposed upon an adult con-
victed of the like offence, may be sentenced to the Industrial Refuge
for Girls of Ontario, for such fixed term as the Court thinks fit, not
being greater than the term of imprisonment which could be imposed
upon an adult for the like offence, and may be further sentenced to an
indefinite fixed term, provided that the whole term of confinement in
the Industrial Refuge shall not exceed five years from the commence-
ment of her imprisonment. Sec. 62.

Any girl apparently under the age of fourteen years who is con-
victed of an offence punishable by law on summary conviction, and
sentenced and committed to any common gaol, for a term not less than
fourteen days, may be sentenced by a Judge of a superior or county
Court to be sent forthwith or at the end of her term in such gaol to the
Industrial Refuge for Girls of Ontario, to be detained for an indefinite
period, not exceeding in the whole five years from the commencement
of her imprisonment in the common gaol. Sec. 63.

A boy in the industrial school, or a girl in the Industrial Refuge
for Girls, may be bound an apprentice to an approved person, for a
term not to extend beyond five years from the commencement of his or
her imprisonment; and thereupon may be discharged on probation.
Sec. 65.

Any child apparently under the age of fourteen years, convicted
summarily or otherwise of an offence, may be committed to any home
for destitute or neglected children or to the charge of any approved
children's aid society. Sec. 67.

When information or complaint is made against a boy under the
age of twelve years, or girl under the age of thirteen years, for an
offence punishable on summary conviction or otherwise, the Court or
justice shall notify the executive officer of the children's aid society,
and may notify parents or friends. Sec. 68. After consultation
with the officer and hearing the complaint, the Court or justice may,
by order,

(a) Authorize the said officer to take the child, and, under the pro-
visions of the law of Ontario, bind the child out to some suitable person
until the child has attained the age of twenty-one years, or any less
age; or

(&) Place the child out in some approved foster-home; or

(d) Suspend sentence for a definite or for an indefinite period; or

(e) If the child has been found guilty of the offence charged, or is
shewn to be wilfully wayward and unmanageable, commit the child
to a certified industrial school, or to the Ontario Reformatory for
Boys, or to the Refuge for Girls, as the ease may be, and in such caseSy

254:1 Punishments. [book i.

the report of the said officer shall be attached to the warrant of com-
mitnlent. Sec. 68.

Except in the case of children cared for in a shelter or temporary-
home under an Act for the Prevention of Cruelty to and the better
Protection of Children, 56 Viet. ch. 45 (Ontario), in a municipality
having but one children's aid society, no Protestant may be committed
to the care of a Eoman Catholic society or placed in a Roman Catholic
family, nor any Roman Catholic children be committed to the care of
a Protestant society, or placed in a Protestant family, under sees. 67,
68 and 69. Sec. 70.

Quebec- — Part III. of the Prisons and Reformatories Act, R.S.C.
(1906) ch. 148, applies only to the Province of Quebec. Sec. 78.

Every person apparently under the age of sixteen years, convicted
before any Court of criminal jurisdiction, or any Judge of sessions of
the peace, recorder, district or police magistrate, of any offence for
which he would be liable to imprisonment, may be sentenced to be
detained in a certified reformatory school for a term not less than two,
nor more than five years, or to be first imprisoned in a common gaol
for not more than three months, and thereafter to be sent to a certified
reformatory school to be detained for not less than two, and not more
than five years. Sec. 79.

An offender detained in a reformatory under summary conviction
may be discharged by the Lieutenant-Governor. Sec. 80.

Persons apparently under the age of sixteen years arrested on a
charge of having committed any offence not capital, shall not, while
awaiting trial, be detained in the common gaol, but in a certified
reformatory school if there be any within three miles of such gaol, and
if there be more than one such school within such distance, the person
detained shall be placed in that school conducted most nearly in
accordance with the religious belief to which his parents belong, or in
which he has been educated. Sec. 81.

Every offender detained in a certified reformatory school who
wilfully neglects and refuses to conform to the rules thereof shall be
imprisoned with hard labour for a term not exceeding three months,
on summary conviction before a .justice of the peace, and at the
end of such term of imprisonment, he shall be brought back to the
reformatory school to be detained for the portion of the term to which
he was originally sentenced which remained unexpired at the time
he was sent to the prison. Sec. 82.

{Note. — The four last preceding sections seem to apply to both
males and females, though they occur in Part III. of the statute under
the sub-title "Reformatory Schools for Boys.")

Nova Scotia. — Part IV. of the aforesaid Act applies only to the
Province of Nova Scotia. Sec. 89.

CHAP, vii.] Juvenile Offenders. 254m

A Protestant boy apparently under the age of sixteen years con-
victed of an offence punishable by imprisonment may be sentenced to
the Halifax Industrial- School, for a term not more than five or less
than, one year. Sec. 90 (amended in 1908). Such boy must be
instructed in reading, writing and arithmetic, and in one of the trades
or occupations taught in the school. See. 92.

A Roman Catholic boy apparently under the age of sixteen years
convicted of an offence punishable by imprisonment may be sentenced
to the St. Patrick's Home at Halifax, for a teri^i not exceeding five or
less than one year. Sec. 93 (amended in 1908). Such boy must be
instructed in reading, writing and arithmetic, and in one of the trades
or occupations taught in the home. See. 96.

A boy sentenced to be detained in the home may be licensed to be at
large in the province, or in such part thereof as the license may
specify. Sec. 97.

A boy upon contravention of any of the conditions of his license
may be remitted to the home to serve the remainder of his original
sentence, with such additional term, not exceeding one year, as may
seem proper. See. 97(4).

Any Roman Catholic girl apparently under the age of eighteen
years convicted of an offence punishable by imprisonment may be
sentenced to the Good Shepherd Industrial Refuge, for a term not
exceeding five or less than two years (sec. 105), with the written con-
sent of the Superintendent of the Refuge, and after provision has been
made by the municipality within which the conviction has taken place
for the support of the girl so sentenced (sec. 106), and each girl sen-
tenced and detained must be instructed in reading, writing and
arithmetic, and in one of the trades or occupations taught in the
Refuge. Sec. 107.

Girls so sentenced may be apprenticed to approved Roman Catholic
persons for a term not exceeding five years from the commencement of
the girl's imprisonment, and upon such apprenticeship taking place
the girl shall be discharged from the Refuge on probation. Sec. 108.

A girl sentenced to be detained in a Refuge may be licensed to be
at large in the province or in any specified part thereof, and upon con-
travention of the conditions of the license may be remitted to the
Refuge to serve the remainder of her original sentence, with such addi-
tional term as may seem proper, not exceeding one year. Sec. 112.

New Brunswick. — Part V. of the above mentioned Act applies only
to the Province of New Brunswick.

Boys apparently under the age of sixteen years may be sentenced
to the Industrial Home for Boys for fixed and for indefinite terms,
the whole period not to exceed, five years. Sec. 116. There are pro-
visions for the transfer of boys under sixteen from the common

2Mn Punishments. [book i.

jails to the home (sec. 117), and from Dorchester Penitentiary (sec.
125) ; for the apprenticeship of boys (sec. 121) ; for their discharge
absolutely or on probation (sec. 123), and for their recommittal.
Sec. 124.

Imprisonment of Females.

There is no general statutory provision for the imprisonment of
females, except for the separation from mal« ^prisoners in peniten-
tiaries, but special and varying provisions are made concerning them
in respect of certain provinces by the Prisons and Eef ormatories Act,
R.S.C. (1906) ch. 148.

In Ontario a female, convicted of an offence punishable by impri-
sonment in the common gaol for two months or more, may be sentenced
to the Andrew Mercer Reformatory for Females (sec. 55), or if con-
fined to the common gaol, may be transferred to the Reformatory.
Sec. 56. A female convicted of being a loose, idle or disorderly, or
vagrant person, under sec. 239 of the Code, or under Part XVI. of
the Code (Summary Trial for Indictable Offences), may be sentenced
to the Reformatory, for any term less than two years, without a fine
if the term be more than six months, in substitution for the punish-
ments otherwise provided. Sec. 57. Females sentenced to imprison-
ment in common gaols, or confined therein, by a police magistrate of a
city, may be committed or transferred to a House of Refuge for
Females (sec. 71), and may be transferred to a House of Refuge.
Sec. 72.

In Nova Scotia, every Roman Catholic female above the age of
sixteen years, convicted of an offence punishable by imprisonment in
a city prison or common gaol for two months or more, may be sentenced
to extended or substituted imprisonment in the Good Shepherd Re-
formatory at Halifax, if under the *age of twenty-one years until she
become twenty-one, or for not less than two, or more than four years ;
if twenty-one years or upward, for not less than one, or more than
two years. Sec. 98. A female aged more than sixteen, confined in a
city prison or common gaol may be transferred to the Reformatory.
Sec. 99. A female Roman Catholic, convicted of being a loose, idle
or disorderly person, or vagrant, or surrfmarily for an indictable '
offence, under Part XVI. of the Code, may be sentenced to the Re-
formatory for a term less than two years, in substitution for the pun-
ishments otherwise provided for. Sec. 100. Persons in the Reforma-
tory may be transferred to a city prison or common gaol. Sec. 103.

In New Brunswick, every Roman Catholic girl, convicted of certain
specified offences, may be sentenced to the Good Shepherd Reforma-
tory for a term less than two years. Sees. 127, 128.

Trial of Juvenile Offenders. — The trial of persons apparently
under the age of sixteen years must take place without publicity, and
separate from the trials of other accused persons. Code sec. 644.

CHAP. VII. J Females. 254o

The trial of offenders whose age does not, apparently, exceed six-
teen years, for indictable offences, is provided for by Part XVII. of the
Code, sees. 800-821. This part does not apply in British Columbia or
Prince Edward Island to any offence punishable by imprisonment for
two years and upwards. Code sec. 801.

A person whose age does not, in the opinion of the justice before
whom he is brought, exceed sixteen years of age, shall upon conviction
before two justices of theft, or an offence punishable as theft, be com-
mitted ,to imprisonment in the common gaol or other place of confine-
ment, with or without hard labour, for a term not exceeding three
months, or shall pay a fine not exceeding twenty dollars, as the jus-
tices may adjudge. Code sec. 802.

The jurisdiction to try, and to sentence a juvenile for any offence
within see, 802, is given irrespective of the value of the thing stolen.
Under this Part of the Code, however, which relates wholly to juvenile
offenders, he has the right to elect to be tried by a jury, and, in that
event, he could not be tried summarily.

The power of determining the age or apparent age of the accused is
given exclusively to the justice ; and a conviction will not be held bad
for the omission to state that the accused is under the age of sixteen
years. E. v. Quinn (1900), 36 Can. Law Jour. 644 (N.S.).

If the charge be of an offence over which, if the offence charged be
true in fact, the magistrate has jurisdiction, the magistrate's juris-
diction cannot be made to depend upon the truth or falsehood of the
facts, or upon the evidence being sufficient or insufficient to establish
the corpus delicti brought under investigation. Cave v. Mountain, 1
M. & G. 257. And on a habeas corpus to which a proper commitment
in execution is returned, the Court never enters into the question
whether the magistrate has drawn the right conclusion from the evi-
dence, when there was evidence. E. v. Munro (1864), 24 U.C.Q.B. 44.

Part XVII. of the Code does not enable two or more justices in
Ontario to sentence to imprisonment in a reformatory in that pro-
vince. .Code sec. 803. Nor does Part XVI. prevent the summary con-
viction of offenders liable under other Parts of the Code. Code
sec. 804.

Juvenile Courts. — An Act respecting Juvenile Delinquents, 7 & 8
Bdw. VII. ch. 40, was assented to 20th July, 1908. It goes into force
in any province, city, town or other part of a province on proclamation
in the Canada Gazette (sec. 36). It provides for the trial of persons
under sixteen years of age by Juvenile Courts specially authorized.
Where such a Court exists it has exclusive jurisdiction in delinquency,
except where, in the case of children apparently over fourteen years,
the Juvenile Court orders that the accused shall be tried by indictment
(sees. 4 and 7). Trials are summary. Sec. 5.

254p Punishments. [book i.

Sec. 13. — Punishments.

General Rules as to Punishments. — No person shall be deemed
guilty or liable to punishment until duly convicted. Code sec. 1027.

Everyone who is convicted of any offence not punishable with
death, shall be punished in the manner, if any, prescribed by the
statute especially relating to such offence. Code sec. 1051.

Felonies and Misdemeanours. — The distinction between felony and
misdemeanour is abolished, and proceedings in respect of all indictable
offences, except so far as they are herein varied, shall be conducted in
the same manner. Code sec. 14.

Larceny after Previous Conviction. — See the following Code sec-
tion : Stealing dogs, etc., sec. 370 ; stealing trees, etc., sec. 374 ; stealing
plants, etc., sec. 375(2), sec. 376(2); stealing fence, etc., sec. 377;
stealing things not otherwise provided for, sec. 386(2).

Larceny after Two Previous Convictions. — See the following Code
sections: Stealing trees, etc., see. 374; stealing plants, etc., sec. 375(2),
sec. 376(2) ; stealing fences, etc., sec. 377 ; stealing things not otherwise
provided for, sec. 386(2).

Punishment of Principal in the Second Degree and Accessories. —
Principals in the second degree and accessories before the fact are
parties to the offence; there is now no distinction. Code sec. 71.

For punishment of accessories after the fact, see murder, sec. 267 ;
indictable offences punishable by imprisonment for life or more
than fourteen years, sec. 574; other cases, sec. 575.

Degrees of Punishment. — An offender liable to different degrees or
kinds of punishment may be punished as the Court before which he
is convicted may decide. Code sec. 1028.

Fine or Penalty. — ^When a fine or penalty may be imposed, the
amount thereof, subject to any specially defined limitations, shall be
in the discretion of the Court passing sentence. Code sec. 1029.

Cumulative Punishment. — When an offender is convicted of more
offences than one, before the same Court or person at the same sitting,
or when any offender, under sentence or undergoing punishment for
one offence is convicted of any other offence, the Court or person
passing sentence may, on the last conviction, direct that the sentences
passed upon the offender for his several offences shall take effect one
after another. Code sec. 1055.

A prisoner convicted at the one time of two offences and sentenced
on each to three months' imprisonment without specification as to the
terms being concurrent or otherwise, is not entitled to a discharge on
a habeas corpus after three months' imprisonment. There is no
presumption that sentences passed at the one time are to be concur-
rent. Ex parte Bishop, 1 Can. Cr. Cas. 118 (N.B.).

CHAP. VII. J Offences Under More Than One Act. 254^

When Offence Punishable under More than One Act or Law.
— ^Where an act ov omission constitutes an offence, punishable on sum-
mary conviction or on indictment, under two or more Acts, or both
under an Act and at common law, the offender shall, unless the con-
trary intention appears, be liable to be prosecuted and punished under
either or any of such Acts, or at common law, but shall not be liable
to be punished twice for the same offence. Code sec. 15.

When a statute makes thiat unlawful which was lawful before, and
appoints a specific remedy, that remedy may be pursued and no other ;
and where an offence is not so at common law, but made an offence by
Act of Parliament, an indictment will lie where there is a substantive
prohibitory clause in such Act of Parliament, though there be after-
wards a particular provision and a particular remedy. When a new
offence is created by an Act of Parliament, and a penalty is annexed to
it by a separate and substantive clause, it is not necessary for the pro-
secutor to sue for the penalty, but he may proceed on the prior clause,
on the ground of its being an indictable offence. E. v. Mason (1867),
17 U.C.C.P. 534.

In order to be a bar the issue in the second proceeding must be
identical with that in the first one, although the facts may vary, and
although the charges formulated may not be the same. K. v. King
(1897), 1 Q.B. 214; see notes in 2 Can. Cr. Cas. 497.

Parliament never intended to repeal the common law, except in so
far as the Code either expressly or by implication repeals it. So that
if the facts stated in the indictment constitute an indictable offence
at common law, and that offence is not dealt with in the Code, then
unquestionably an indictment will lie at common law; even if the
offence has been dealt with in the Code, but merely by-way of state-
ment of what is law, then both are in force. Union CoUiery Co. v.
The Queen, 4 Can. Cr. Cas. 400 (Can.), per Sedgewick, J.

The Criminal Code of 1892 was intended to make complete and
exhaustive provision as to the subjects with which it deals, in so far
at all events as its provisions relate to procedure. It is explicitly called
a Code by the first section of the chapter in which it is embodied and its
utility as a Code will be greatly impaired if it cannot be so considered.
E. V. Snelgrove (1906), 12 Can. Cr. Cas. 189. See also the Vagliano
Case, [1891] 1 A.C., at p. 144.

Where a person has been acquitted by a Court of competent juris-
diction the acquittal is a bar to all further proceedings to punish him
for the same matter, although a plea of autrefois acquit may not be
allowed because of the different nature of the charges. The acquittal
on the first charge became res judicata as between the Crown and the
accused, and it was not open to the Crown to proceed on the second
charge in which a conviction could only be had by the second jury

254r Punishments. [book i.

overruling the contrary verdict of the first jury. R. v. Quinn, 10 Can.
Cr. Cas. 412, 11 O.L.R. 242.

Sec. 14i.— Obsolete Punishments.

Outlaivry in Criminal Cases. — Code sec. 1030.
Solitary Confinement and the Pillory. — Code sec. 1031.

Sec. 15. — Civil Effects of Conviction.

Forfeiture of any chattels which have moved to or caused the death
of any human being, in respect of such death (Code sec. 1032), and
attainder or corruption of blood, or any forfeiture or escheat (Code
sec. 1033) have been abolished.

Sec. 16. — Pardon or Remission of Punishment.

The Crown may extend the royal mercy to any person sentenced
to imprisonment by virtue of any statute, although such person is
imprisoned for non-payment of money to some other person than the
Crown. Code sec. 1076.

The Crown may commute the sentence of death passed upon any
person convicted of a capital offence to imprisonment in the peniten-
tiary for life, or for any term of years not less than two years, or to
imprisonment in any gaol or other place of confinement for any period
less than two years, with or without hard labour. Code see. 1077.

No free pardon, nor any discharge in consequence thereof, nor any
conditional pardon, nor the performance of the condition thereof, in
any of the cases aforesaid, shall prevent or mitigate the punishment to
which the offender might otherwise be lawfully sentenced on a subse-
quent conviction for any offence other than that for which the pardon
was granted. Code sec. 1076(3).

When an offender has been convicted of an offence not punishable
with death, and has endured the punishment adjudged, or has been
convicted of an offence punishable Avith death and the sentence of
death has been commuted, and the offender has endured the punish-
ment to which his sentence was commuted, the punishment so endured
shall, as to the offence whereof the offender was so convicted, have the
like effect and consequences as a pardon under the great seal. Code
sec. 1078.

When any person convicted of any offence has paid the sum ad-
judged to be paid, together with costs, if any, under such conviction,
or has received a remission thereof from the Crown, or has suffered the
imprisonment awarded for non-payment thereof, or the imprisonment
awarded in tlie first instance, or has been discharged from his con-
viction by the justice in any case in which such justice may discharge

CHAP. VII.] Pardons. 254s

such person, he shall be released from all further or other criminal
proceedings for the same cause. Code sec. 1079.

His Majesty's royal prerogative of mercy is not limited by the
statutory provisions. Code sec. 1080.

No civil remedy for any act or omission shall be suspended or
affected by reason that such act or omission amounts to a criminal
offence. Code sec. 13.

This section (formerly section 534 of the Criminal Code, 1892), has
been held in Quebec not to be "criminal law" legislation, but legisla-
tion dealing with civil rights and therefore ultra vires of the Federal
Parliament. Paquet v. Lavoie (1898), 6 Can. Cr. Cas. 314, 7 Que,
Q.B. 277.

To an action, before the Code, for assault and battery defendant
pleaded that before action brought the plaintiff laid an information
before a magistrate charging defendant with feloniously, etc., wound-
ing the plaintiff with intent to do him grievous bodily harm, thereby
charging defendant with felony; that defendant was brought before
the magistrate and committed for trial which had not yet taken place ;
that the subject of both the civil and criminal prosecutions was the
same, and that plaintiff's civil right of action was suspended until the
criminal charge was disposed of. Held, on demurrer, that the plea
was good ; and an order was made staying the civil action in the mean-
time. Taylor v. McCuUoch (1885), 8 Ont. R. 309.

The former rule, excepting in the Province of Quebec, was that on
grounds of public policy if it appeared on the trial of a civil action
that the facts amounted to felony, the Judge was bound to stop the
civil proceedings and nonsuit the plaintiff in order that public justice
might :first be vindicated by 6^ criminal prosecution. Walsh v. Nattress,
19 U.C.C.P. 453 ; Livingstone v. Massey, 23 U.C.Q.B. 156; Williams v.
Robinson, 20 U.C.C.P. 255; Pease v. McAloon, 1 Kerr (N.B.) 111. The
civil remedy was held to be suspended until the defendant charged
with the felony should be either acquitted or convicted thereof. Brown
V. Dalby, 7 U.C.Q.B. 162.

The act of pardoning is one of pure clemency and is not the exercise
of a judicial power ; it is purely and essentially the exercise of a royal
prerogative which is exercised by the Sovereign himself or in his
dominions beyond the seas by his representative under a special dele-
gation of power. This delegation, in the case of the Governor- General,
is contained in the royal instruction, but if the King saw fit a delega-
tion of this power could be given to any Lieutenant-Governor for
matters under the legislative jurisdiction of his province. Todd's Par-
liamentary Government in British Colonies, page 254.

The prerogative of mercy is simply the exercise of a discretion on
the part of the Sovereign to dispense with or to modify the punish-
ments which the criminal or penal law require to be inflicted.

254t Punishments. [book i.

It is exercised by eommutation or by a free or conditional pardon.
Ex parte Armitage, 5 Can. Cr. Cas. 345.

Letters patent containing permanent instructions for the exercise
of the duties and powers of the Governor-General of Canada were
issued on the 5th October, 1878. These letters patent specially
authorize and empower the Governor-General for the time being, in
the name and on behalf of the Sovereign, to grant to any offender con-
victed of any crime in any Court, or before any Judge, justice or
magistrate within the Dominion a pardon should he see occasion, or a
respite of the execution of the sentence of any such offender, for such
period as he may see fit, and to remit any fines, penalties or forfei-
tures which may become due or payable to the Crown, provided that
the Governor- General should not pardon or reprieve any such offender
without first receiving in capital cases the advice of the Privy Council
and in other cases the advice of one at least of his ministers. The
royal mercy may be extended to a person who is imprisoned for the
non-payment of a penalty which belongs to a person other than the
Crown. This rule was established by see. 125 of the statute 32-33 Viet,
ch. 29, the provision is reproduced in sec. 1076 of the Code. Ex parte
Armitage, 5 Can. Cr. Cas. 345.

The power of commuting and remitting sentences for offences
against the laws of the Province of Ontario, or offences over which
the legislative authority of the province extends, which by the terms of
the Act 51 Vict. ch. 5 (Ont.) is included in the powers which were
vested in or exercisable by the Governors or Lieutenant-Governors
of the several provinces before Confederation, and which are now
by that act vested in and exercisable by the Lieutenant-Governor of
this province, does not affect offences against criminal laws which are
the subject of Dominion legislation, but refers only to offences within
the jurisdiction of the Provincial Legislature, and in that sense the
Ontario statute is intra vires the provincial legislation. Attorney-
General for Canada v. Attorney-General for Ontario, 19 Ont. App.
31, 23 S.C.R. 458. See note 5 Can. Cr. Cas. 354.

Fines imposed under the Montreal City Charter belong to the
Crown as represented by the Governor of the Province of Quebec and
of the City of Montreal, and the city has no power to remit the same.
Semble, the pardoning power is an exercise of the royal prerogative
and unless a statute expressly limits such prerogative the same is to be
exercised by the Sovereign or his representative (in Canada by the
Governor-General) acting under a special delegation of power from
the Sovereign, and the remission of a penalty under a provincial
statute for default in payment whereof the accused is undergoing
imprisonment is an exercise of the pardoning power. R. v. Armitage
5 Can. Cr. Cas. 345.

CHAP. VII. J Pardons. 2Mu

In the matter of pardons of convicts in the penitentiaries, gaols,
prisons and reformatories, the application for clemency should be pre-
pared in the form of a petition addressed to His Excellency the
Governor-General, stating the age and name of the prisoner or con-
vict, the name of the Judge or magistrate who tried or sentenced
him, crime committed and date of sentence, term of imprisonment,
where incarcerated, and reasons for seeking the clemency of the
Crown.

This petition should be forwarded to the Secretary of State at
Ottawa or to the Departments of Justice and signed by one or more
persons, with any documentary evidence or letter regarding the pre-
vious character of the prisoner. The papers are subsequently laid
with the advice of the Minister of Justice before His Excellency the
Governor-General, whose pleasure is communicated by the Secretary
of State to the parties interested and to the warden of the penitentiary
or keeper of the gaol,, as the ease may be.

In case of death sentence the Judge, after sentencing the prisoner,
forwards, under sec. 1063 of the Code, a copy of the evidence, and his
report to the Secretary of the State. Any application for the commu-
tation of the sentence should be addressed to His Excellency the
Governor-General in Council through the Secretary of State, in the
form of a petition setting forth reasons for such application. This
application is referred to the Minister of Justice and is submitted by
him, with his recommendation to the Governor-General in Council,
whose pleasure is communicated to the interested parties by the Secre-
tary of State.

( 255 )

BOOK THE SECOND.

OF OFFENCES RELATING TO THE LAW OF NATIONS.

CHAPTER THE FIRST.

OF PIRACY.

Sect. I.— Of Piracy Jure Gentium.

It is necessary to distinguish between piracy jure gentium (or as it is
sometimes styled, piracy at common law) (a) and the forms of piracy
created by municipal legislation (&). 'Piracy jure gentium^ is only
a sea term for robbery, piracy being a robbery within the jurisdiction of
the Admiralty (c). . . .If the mariners of any ship shall violently
dispossess the master, and shall afterwards carry away the ship or any of

(a) In the 6th edition of this work (Vol. i.
p.260 n), it was said that ' a faUaoy seems to
run through some of our books in saying
that piracy was not felony at common law.
This arose from such expressions as that it
was a crime of which the common law did
not take notice or cognisance, i.e. which
was not triable by jury, the common-law
mode of trial. See 2 Hale, 18, 372. 1
Hale, 355. Lord Coke says it was felony,
Co. Litt. 391a. 3 Co. Inst. 112. 13 Co.
Rep. 51. In 40 Ass. PI. 25, p. 245, a case of
piracy is mentioned where a Norman cap-
tain was attainted of felony and hanged.
See this case stated 3 Co. Inst. 21, and
1 Hale, 100.' C. S. G. This opinion was
stated by the late Sir R. S. Wright to be
inaccurate (see Pari. Pap. 1878, H. L. 178,
Report on Piracy Statutes). Piracy is
distinguished from felony in 7 & 8 Geo. IV.
u. 28, ss. 1, 2, 3.

(b) The enactments stiU unrepealed re-
lating to piracy are : 1536, 28 Hen. VIII.
u. 15 {post, p. 257) ; 1670-1, 22 & 23 Car. II.
0. 11 (post, p. 259) ; 1698, 11 Will. IIL cl 7
[post, p. 259) ; 1717, 4 Geo. L c. 11, a. 7
{post, p. 260) ; 1720, 8 Geo. I. c. 24 {post,
p. 260) ; 1744, 18 Geo. II. c. 30 {post,p. 263) ;
1772, 12 Geo. III. c. 20 (virt. rep. as to
England and Ireland by Acts of 1827 and
1828) ; 1824, 5 Geo. IV. u. 113, ri. 9 {post,
p. 271) ;' 1827, 7 & 8 Geo. IV. c. 28, ss. 1,
2, 3 (E) ;' 1828, 9 Geo. IV. c. 54, ss. 7, 8 (I) ;
1837, 7 Will. IV. & 1 Vict. o. 88, ss. 2-4 ;
1842, 5 & 6 Vict. c. 28, s. 16 (I) ; 1849, 12
& 13 Vict. c. 96 {post, p. 269) ; 1850, 13
& 14 Vict. c. 26 {post, p. 264); 1860,
23 & 24 Vict. cc. 88, 122 {post, p. 269) ; 1878,
41 & 42 Vict. u. 73, s. 6 (post, p. 268) ; 1890,
53 & 54 Vict. c. 27, s. 2 (post, p. 269).

Ameeican Note.

In the United States the law relating to
Piracy is contained in Acts of Congress.
U. S. Statt. Rev. ss. 5368-5375. Robbery
on the high seas is piracy both by the laws
of nations and by the Acts of Congress.
U. S. V. Furlong, 5 Wheat. 164. As to
mutiny on board ship, see U. S. v. Sharp,
■ 1 Peters, C. C. 122 ; U. S. v. Bladen, ibid.
213; U. S. V. Gardiner, 5 Mason, 402;
U. S. V. Kelly, 4 Wash. C. C. 528. As to
running away with a ship, see U. S. v.
Haskell, 4 Wash. C. C. 402. Robbery on
the high seas directed against all mankind

is piracy jure gentium. V. S. v. Smith,
5 Wheat. (U. S.), 153, 161 ; but under the
statutes relating to this offence, persons
(Southern States rebels) were held guUty of
piracy who planned and carried out attacks
on American vessels only. See the case of
the Savannah Pirates. U. S. v. Baker, 5
Blatchf. (U. S.), 6. U. S. Statt. Rev. s.
5372 ; and U. S. v. Palmer, 3 Wheat. (U. S.)
610 ; KUntock's case, 5 Wheat. (U. S.), 144,
184; the 'Malek Adhel,' 2 How. (U. S.),
219 : the ' Ambrose Light ' [1885], 25 Fed.
Rep. 408.

256 Of Offences Relating to the Law of Nations, [book ii.

the goods with a felonious intention in any place where the Lord Admiral
hath jurisdiction, this is robbery and piracy '(<?). It is equally piracy
jure gentium if the passengers do such acts as would make the mariners
pirates (e).

An act is not cognisable as piracy jure gentium if done as an act of
war (animo belligerendi), and under the authority of a prince or state :
but depredating on the high seas without such authority is piracy, even
if the motive is not plunder, if the act was done wilfully and without legal
authority or lawful excuse. The American view developed during the
Civil War appears to deprive a community in rebellion of the right to
commit belligerent acts upon the sea against the state from which it has
rebelled, unless the rebellious state has received recognition of belligerent
rights 'from some sovereign power (/). The accepted distinction between
belligerency and piracy is the recognition of the existence of a regularly
organised de facto government. Such recognition is regarded as an
executive, and not as a judicial question (g).

In Republic of Bolivia v. Mutual Indemnity Marine Insurance Co. (h),
Pickford, J., accepted as the popular or business meaning of piracy the
definition of the late Mr. Hall (i) : ' Though the absence of competent
authority is the test of piracy, its essence- consists in the pursuit of
private, as contrasted with public, ends. Primarily the pirate is a man
who satisfies his personal greed or his personal vengeance by robbery or
murder in places beyond the jurisdiction of a State. The man who
acts with a public object may do like acts to a certain extent, but his
moral attitude is different, and the acts themselves will be kept within
well-marked bounds. He is not only not the enemy of the human race,
but he is the enemy solely of a particular State.' The learned judge
continued : ' Several, but not all, of the definitions cited in the note on
p. 260 of the same work bear out that idea. There is another passage
in Hall, at p. 262, which throws some light upon the matter. Speaking
of depredations committed at sea upon the public or private vessels of a
state, or descents upon its territory from the sea by persons not acting
under the authority of any politically organised community, notwith-
standing that the objects of such persons may be professedly political,
Hall said that such acts were piratical within the meaning of the term
in international law, but he went on to say this : — " Sometimes they are

mitted on land would have amounted to (/) See the 'Ambrose Light' [1885], 25

felony. 1 Hawk. c. 37, s. i. 2 East, P. C. Fed. Rep. 408, where the authorities and

776. Mason's Case, 4 Bl. Com. 72. Others juristic opinions are collected and discussed,

regard it as the same oilence as robbery on In that case a brigantine commissioned by

land. Arohb. Vict. Acts, 72. 2 Hale, 369. rebels as a Colombian vessel of war was

1 Hale, 354. Coke, 3 Inst. 113, eaUs a pirate seized by a United States warship and

a 'robber on the sea.' Piracy is a mari- brought in for condemnation as prize under

time offence, and cannot be committed on the law of nations as piratical. There was

a river, however large, far within the not at the time any recognition of belli-

boundaries of a State. Republic of Boli- gerency or of an existing state of war in

via V. Oriental Indemnity Insurance Co., Colombia. Held that the seizure was

i'f'fra. technically authorised by the law of nations.

(d) R. u. Dawson, 13 St. Tr. 454, approved (q) Ibid. p. 431.

Att.-Gen. of Hong Kong v. Kwok a-Sing, \h) [1909] 1 K.B. 785, 791, accepted

L. R. 5 P.O. 169, 199. Cf. U. S. v. TuUy, by the C.A., ibid. p. 796.

1 GaU. (U. S.), 247, Story, J. (i) Int. Law (5th ed.), 259.

(e) L. R. 5 P.C. 200.

CHAP. I.] Piracy Jure Gentium. 257

wholly political in their objects and are directed solely against a particular
state, with careful avoidance of depredation or attack upon the persons
or property of the subjects of other states. In such cases, though the
acts done are piratical with reference to the state attacked, they are for
practical purposes not piratical with reference to other states, because
they neither interfere with nor menace the safety of those states, nor
the general good order of the seas. It wUl be seen presently that the
difference between piracy of this kind and piracy in its coarser forms has
a bearing upon usage with respect to the exercise of jurisdiction." '

The question involved in the case was whether the seizure of a steamer
under the Brazilian flag carrying provisions to a Bolivian garrison on a
tributary of the Amazon, was piracy within the meaning of an insurance
policy. The seizure was made by rebels in an outlying Bolivian district,
who claimed to have organised themselves into the Free Eepublic of Acre,
a government not recognised by any foreign power {j).

To constitute piracy jure gentium, it is not necessary that there should
be any throwing off of the allegiance of the state to which the vessel
belongs : but it is sufl5.cient if there is a taking of the ship within the
jurisdiction of the admiral from the possession or control of those who
are lawfully entitled to it, and a carrying away of the ship or of any of
its goods, tackle, apparel, or furniture, under circumstances which would
have amounted to robbery if the acts had been done on land {h). It
is immaterial whether the piratical acts are done by mariners or
passengers {I), or persons coming from the shore (m).

In time of peace, any act of depredation on a ship is 'prima facie an
act of piracy, but in time of war between two countries, the presumption
is that depredation by the citizens of one country upon a ship of the other
is an act of legitimate warfare, and it is immaterial whether the act was
done by soldiers or volunteers, and whether it was commanded by the
State of which they were citizens, or when done ratified by it. The
animus belUgerendi excludes the animus furandi which is an essential
element in robbery (n).

Piracy jure gentium is justiciable in the Courts of every country (o).
In England until 1536, it was rarely, if ever, tried according to the course
of the common law by judge and jury, but was dealt with by the admiial
or under his jurisdiction, according to the course of the civil law (p).
The Offences at Sea Act, 1536 (28 Hen. VIII. c. 15), after reciting ' where
traitors, pirates, thieves, robbers, murtherers, and confederatours upon
the sea many times escape unpunished because the trial of their offences
hath heretofore been ordered judged and determined before the admiral or
his lyeutenant or commissary, after the course of the civil laws, . . . enacts

{j) As to piratical acta by organised guese waters by convicts from the shore,

rebels, see Magellan Pirates [1853], 1 Eocl. (») Re Tivnan, 5 B. & S. 645. This case

& Adm. (Spinks), 81 ; 13 & 14 Vict. c. 26, was an attempt to obtain extradition for

post, p. 264. piracy within the jurisdiction of the United

(k) R. V. Nya Abu [1886], 4 Kyshe States in respect of a seizure by citizens of

(Straits Settlements), 169. the Confederate States of a vessel (flying

(/) Att.-Gen. for Hong Kong v. Kwok the Federal flag) in the port of Matamoras

a-Sing, L. B. 5 P.O. 179, 200. U. S. -v. in Texas.

Tully [1812], 1 Gall. (U. S.) 247, Story, J. (o) Kwok a-Sing's case, ubi sup.

(m) V. 8. V. Boas [1813], 1 Gall. (U. S.), (p) See Select Admiralty Pleas, Selden

624, Story, J., seizure of a vessel in Portu- Soo, Publ. Vol. 6.

VOL. I. S

258 Of Offences Relating to the Law of Nations, [book il.

that ' all treasons, felonies, robberies, murders, and confederacies, hereafter
to be committed in or upon the sea, or in any other haven, river, creek,
or place where the admiral or admirals have, or pretend to have, power,
authority, or jurisdiction {q), shall be enquired, heard, determined, and
judged, in such shires and places in the realm as shall be limited by the
King's commission or commissions, to be directed for the same in like
form and condition as if any such offence or offences had been done in or
upon the land : and such commissions shall be had under the King's Great
Seal directed to the admiral or admirals and his or their lieutenant deputy
or deputies, and to three or four such other substantial persons as shall be
named or appointed by the Lord Chancellor of England, for the time
being, from time to time, and as often as need shall require, to hear and
determine such offences after the common course of the laws of this
land, used for treasons felonies robberies murders and confederacies of
the same done and committed upon the land within this realm ' (r).

This statute, though it provides for the trial of piracy according to the
course of the common law, and for capital punishment, does not change
the nature of the offence (.s), nor in terms make it felony {t). It does not
extend to offences made piracy by statute, unless the Act so provides (m).

In 1693, the Lords of the Council resolved to try Golding and others (v)
for piracy, in respect of the depredations by privateers acting under
commissions from James IL The King's advocate (Oldish) gave his
opinion that they were not pirates, and was called before the Council
to support that opinion, which he based on the views — (a) That James II. ,
though he had lost his crown, had not lost his right ; (6) that in the face
of commissions de facto granted by James II. there could be no piracy.
Oldish was removed from office, and the alleged pirates were tried and
convicted by his successor, and some, if not all, were executed (w).

In 1696, several mariners on board a ship lying near Coruna seized
the captain, he not agreeing with them ; and having put him on shore,
carried away the ship, and afterwards committed several piracies. This
force upon the captain, and the carrying away the ship, which was
explained by the use of it afterwards, was adjudged piracy (cc). But in
1722, where the master of a vessel loaded goods on board at Eotterdam

(q) As to Admiralty jurisdiction, see was held by great authority upon attainder

ante, p. 31. before commissioners, under the statute of

(r) 8. 2 deals with indictment, trial Hen. VIII.

and punishment. S. 3 took away benefit of (u) R. & R. 5, note (a),

clergy and sanctuary. S. 5 deals with (v) R. v. Golding, 12 St. Tr. 1269.

commissions for trial within the Cinque (w) In R. v. Kidd [1701], 14: St. Tr. 147,

Ports. S. 4 is a proviso legalising under a, trial for piracy, Captain Kidd had a

conditions the taking of provisions or commission to take ships and goods of the

ship's stores in case of necessity if paid for French and to destroy pirates. But posses-

in cash or by sufficient bill obligatory. sion of the commission was held no excuse

(s) See Dole v. New England Mutual for a piratical attack on the Mocha fleet in

Marme Ins. Co. [1864], 2 Chfford (U. S.), the Indian Ocean, vessels sailing under

394, 416, Clifford, J. English, Dutch and Arab Colours (I.e., p.

(t) It was accordmgly held that a pardon 215). For a trial under Scots Law for

for all felonies did not extend to pirates. piracy, sec Green's case [1705] 14 St Tr

1 Hawk. 0. 37, s. 13. 3 Co. Inst. 112. 1199. This case was one of the contribu-

Co. Lit. 391. Moore (K.B.) 746. In 2 tory causes to the making of the Treaty of

East, P. C. 796, it is said that the offence Union with Scotland.

did not extend to corruption of blood, at (x) R. v. May [1696], MS. Tracy, 77 :

least where the conviction is before the Ad- 2 East, P.O. 796.
niiralty jurisdiction ; though the contrary

CHAP. I.] Piracy by Mmiicipal Law. 259

consigned to l^alaga, which he caused to be insured, and after he had
run the goods on shore in England the ship was burned, when he protested
both the ship and cargo as burned, with intent to defraud the owner and
insurers ; the judges of the common law, who assisted the judges of the
Admiralty, directed an acquittal upon an indictment for piracy and steal-
ing the goods ; because being only a breach of trust and no felony, it
could not be piracy to convert the goods in a fraudulent manner until
the special trust was determined (y).

Sect. II. — Piracy by Municipal Law.

Duty to resist Pirates.— By an Act of 1670 (22 & 23 Car. II. c. 11)
penalties are imposed on the master of a ship, who, without fighting,
yields up to Turkish vessels, or pirates, or sea rovers, goods or merchandise
laden on board English ships of 200 tons or upwards, and mounted with
sixteen or more guns (sect. 1), or English ships of less tonnage or guns (sect. 3).
There is a provision in favour of the master if forced to yield up his ship by
the disobedience of the crew, testified by their laying violent hands on him
(sect. 7). Mariners or inferior officers in such laden vessels who decline or
refuse to fight or defend their ships are to forfeit their wages and goods
in the ship, and to suffer imprisonment for not more than six months with
hard labour (sect. 6). The Act also contains provisions for compensating
officers or seamen wounded in defence of such ship (sect. 9), and for prize-
money if the attacking vessel is taken (sect. 10) (z).

An Act of 1698 (11 Will. III. c. 7) enacts (sect. 7) (a) that 'if any of His
Majesty's natural-born subjects, or denizens of this kingdom shall commit
any piracy or robbery or any act of hostility against other His Majesty's
subjects upon the sea under colour of any commission from any foreign
prince or state, or pretence of authority from any person whatsoever
such offender and offenders shall be deemed adjudged and taken to be
pirates, felons, and robbers ; and they and every one of them being duly
convicted thereof, according to that Act, or the Offences at Sea Act, 1536,
shall suffer such pains . . . aspirates, &c., upon the seas ought to suffer '(6).
This Act seems to have been consequent on the case of R. v. Vaughan (c).

By sect. 8(d),' If any commander or master of any ship, or any seaman
or mariner, shall, in any place where the admiral hath jurisdiction, betray
his trust, and turn pirate, enemy, or rebel, and piratically and feloniously
run away with his or their ship or ships, or any barge, boat, ordnance,
ammunition, goods, or merchandises ; or yield them up voluntarily to
any pirate ; or shall bring any seducing messages from any pirate, enemy,
or rebel ; or consult, combine, or confederate with, of attempt or
endeavour to corrupt any commander, master, officer, or mariner, to yield

(ij) Mason's case [1722], 8 Mod. 74; 2 (c) [1696] 1.3 St. Tr. 485, a trial for

East, P.O. 796. treason on the high seas (see 28 Hen. VIII.

(z) This Act was aimed at the sea-rovers o. 15, ante, p. 257), under a commission from

issuing from the ports of Algiers and the King of France, set outZ.c, p. 536, which

Morocco. Their depredations were checked excused V. from piracy but not from

by the British occupation of Gibraltar. treason (I.e., p. 503). tjnder the Act of

This Act is unrepealed. 1698, two witnesses are not needed as in

(a) S. 8 in the common printed editions. most treasons.

(6) For present punishment see post, {d) S. 9 in the common printed editions.
p. 266.

S 2

260 Of Offences Relating to the Law of Nations, [book ii.

up or run away with any ship, goods, or merchandises, or turn pirate, or
go over to pirates ; or if any person shall lay violent hands on his com-
mander, whereby to hinder him from fighting in defence of his ship, and
goods committed to his trust (e), or that (sic) shall confine his master,
or make or endeavour to make a revolt in the ship, shall be adjudged,
deemed, and taken to be a pirate, felon, and robber, and being convicted
thereof according to the direction of this Act, shall suffer ... as pirates,
felons, and robbers upon the seas ought to suffer ' (/).

In an indictment for confining a captain of a ship, ' constructive '
confinement will satisfy the requirements of the statute, and this will
be supported by evidence that, although no force was used, the captain
was restrained by the presence and gestures of the prisoners, and deprived
of his lawful command, and compelled to remain in certain parts of the
vessel (g).

Making or endeavouring to make a revolt, with a view to procure a
redress of what the prisoners thought grievances, and without any intent
to run away with the ship, or to commit any act of piracy, was held to be
an offence within sect. 8 (A).

Where one count charged the prisoners with making, and another
with endeavouring to make a revolt in a ship, it appeared that great
complaints had been made by the sailors in the course of the voyage
about the provisions and the great heat of the cabin where the men had
to sleep, which on account of the fire for cooking, &c., being close to it,
was unsupportable in the warm latitudes. The prisoner M. refused to go
on duty. The captain in consequence ordered the crew to put M. in irons,
but instead of obeying him they walked away forward. The prisoner
S. had the same morning refused to go to his duty, and he and one G.
went towards the captain, who was endeavouring, with the assistance of
his officers, to put M. in irons. Violent language was used by both,
and threats uttered against the captain, and G. rushed to a boat where
whale spears were kept, with the evident intention of seizing one of them,
and releasing M. by force. The captain shot G. in the act of laying hold
of a spear. Abinger, G.B., said : ' By revolt I understand something
like rebellion or resistance to lawful authority, and if the crew of a ship
combine together to resist the captain, especially if the object be to deprive
him of his authority altogether, it will in my opinion amount to making
a revolt. I think upon the construction of this Act of Parliament that
the resistance of one person to the authority of the captain would not be
a revolt. Eevolt means something more than the disobedience of one
man. I think it would be straining the evidence rather too far to say that
the conduct of these men amounted to a revolt ; and the charge of making
a revolt, if my construction of the Act be correct, will fall to the ground.
The question of whether the ship was properly fitted up and found is
not material ; for it has been decided that, although there be real griev-
ances to redress, yet it is not an answer to a charge of attempting to

(e) This last provision is similar to one (f) For present punishment see post,

in 22 & 23 Car. II., c. 11, s. 9, repealed p. 266.

by 9 Geo. IV. c. 31, s. 1, so far as relates (g) E. i>. Jones, 11 Cox, 393.

to any mariner laying violent hands on his (h) R. v. Hastings [1825], 1 Mood. 82.
commander.

CHAP, i.] Piracy by Municipal Law. 261

make a revolt. If G. and tke prisoners were united in some common
design to prevent the captain from putting M. in irons, which on the
evidence he had a sufficient justification in doing, and calling upon others
of the crew to assist them in resisting the captain's authority, then I
think that it was an attempt to excite a revolt ' (i).

On an indictment upon 11 Will. III. c. 7, s. 8, it appeared that the
prisoners were two of the mates and the others mariners of a merchant
ship. The captain ordered a sailor to go and grease the masts, which the
captain thought necessary to be done. The sailor peremptorily refused,
and the captain on that ordered all hands up : he desired the mates to have
the masts greased, which the men refused to do, and said that it was
the duty of the boys, and that whilst there were boys on board they would
not. The captain positively insisted, and the men as positively refused.
He then ordered the beef for the men's dinners to be taken below, on
which there was a peremptory refusal to let him have it. The captain
went down and armed himself with a cutlass, came again on deck, and
speaking to the steward said, ' Take that beef below, and the first man
who interferes, I will cut him down.' The steward obeyed ; the beef
was taken down and the captain put away his cutlass, and, after staying
on deck some time, went down, and believing he had done sufficient to
assert his authority, he sent the beef back, and allowed the crew to have
their dinners. After this the steward requested the captain to come on
deck, as the men wanted to speak to him. He went on deck, was made
prisoner, and confined in his cabin, the vessel put about, and brought to
Plymouth by the mate and crew, and there the crew made a complaint
against the captain. Williams, J., told the jury that in considering the
meaning of the terms used in the statute he must tell them that confeder-
ating together and making a revolt constituted the offence charged,
unless they were satisfied that there was some justifiable cause. The
great question for their consideration was, whether or not there was any
justification for this unquestionable confinement of the captain. Did,
therefore, his conduct afford any justification for that step ? He was
bound to tell them that, according to the authorities, a seaman was not
justified in making a revolt in a ship, or in imprisoning his captain, by
reason of that captain having been unjust or unreasonable ; it was not
to be allowed that seamen should take the law into their own hands,
because the captain had issued an unjust order, or had conducted himself
in a harassing or embarrassing manner. If the rule of law was that when-
ever the seamen considered the captain's conduct unreasonable and rash,
they could take charge of the ship, there would be an end to all maritime
discipline. It was necessary, for the due maintenance of discipline, that
mutiny and revolt, if not justifiable, should be punished as a crime in the
merchant service as well as in the royal navy. In his opinion, in point
of law, it was justifiable in one view only, namely, if the conduct of the
captain had been such as to afford reasonable ground for concluding that,
unless the men had imprisoned him, the crew, or some one or more of them,
would have been in danger of their lives, or of suffering some grievous
bodily harm from his conduct. If they thought that was made out, and

(i) R. V. M'Gregor, 1 C. & K. 429.

262 Of Offences Relating to the Law of Nations. [book ii.

that the conduct of the captain was such that the lives of the crew were
in danger unless he were imprisoned, then there was a justification. But
if they should not come to the conclusion that there was reasonable
ground for this belief, then, in point of law, they ought to find the prisoners

guilty (?■). _ .

On an indictment under the same section, for makmg a revolt m a
British merchant ship, it appeared that the prisoners formed part of the
crew of a steamer trading between London and Holland ; their register
tickets were deposited with the captain, but no agreement in writing
had been entered into with them previously to their sailing on the voyage
during which the revolt was made, and the recorder held that the prisoners
were not mariners, or seamen; because 7 & 8 Vict. c. 112, s. 2 (k), made any
contract other than the agreement thereby required illegal, and therefore
the relation of commander and mariner did not exist ij). Offences of
the kind dealt with in the two cases last cited can now be treated as offences
against discipline, under sect. 225 of the Merchant Shipping Act, 1894
(57 & 58 Vict. c. 60).

The Piracy Act, 1717 (4 Geo. I. c. 11), declares (sect. 7) ' that all
persons who have committed or shall commit offences within the Act
of 1698, may be tried and judged under the Offences at Sea Act, 1536,' and
deprived them of the benefit of clergy (m).

The Piracy Act, 1721 (8 Geo. I. c. 24), enacts (sect. 1) that 'if any
commander or master of any ship or vessel, or any other person or persons,
shall . . . anywise trade with any pirate by truck, barter, exchange, or
in any other manner, or shall furnish any pirate, felon, or robber upon
the seas, with any ammunition, provision, or stores of any kind ; or shall
fit out any ship or vessel knowingly, and with a design to trade with,
or supply, or correspond with any pirate, felon, or robber upon the seas ; or
if any person or persons shall any ways consult, combine, confederate, or
correspond with any pirate, felon, or robber, on the seas, knowing him
to be guilty of any such piracy, felony, or robbery, every such offender
and offenders shall be deemed and adjudged guilty of piracy, felony,
and robbery (w) . . . and he and they shall and may be inquired of,
tried, heard, and adjudged of, and for all or any the matters aforesaid,'
according to the Offences at Sea Act, 1536, and the Act of 1698, ' and he
and they being convicted of all or any the matters aforesaid, shall suffer
such pains ... as pirates, felons, and robbers upon the sea ought to
suffer.' The same section further enacts that ' in case any person or
persons belonging to any ship or vessel whatsoever, upon meeting any
merchant ship or vessel on the high seas, or in any port, haven , or creek

(j) R. V. Rose, 2 Cox, 329. As reported, British merchant ships are now regulated

this direction is open to the objection that by ss. 113-125 of the Merchant Shipping

it did not inform the jury that the captain Act, 1894 (57 & 58 Vict. c. 60), and by the

might lawfully use any force that was Colonial Navigation Acts of Australia, New

reasonably necessary to retain the com- Zealand, Canada, &c.

mand of the vessel and stop the revolt, and {I) R. v. Smith, 3 Cox, 443.

that the crew would not be justiaed in im- (m) As to acts done by slave traders

prisoning him for using such force for that which are punishable as piracy, see 5 Geo.

purpose ; but, no doubt, the learned judge IV. c. 113, s. 9, post, p. 271.

did so direct the jury. (m) As to present punishments, see vast,

(Ic) Repealed in 1854 (17 & 18 Viet. p. 266.
u. 120). Agreements with the crews of

CHAP. I.] Piracy by Municipal Laid. ^6S

whatsoever, shall forcibly board or enter into such ship or vessel, and
though they do not seize or carry off such ship or vessel, shall throw over-
board or destroy any part of the goods or merchandises belonging to such
ship or vessel ; the person or persons guilty thereof, shall in all respects
be deemed and punished as pirates aforesaid ' {nn).

The Act of 1721 extends to all the King's dominions in Asia, Africa, and
America (sect. 10) (o).

The Piracy Act, 1744 (18 Geo. II. c. 30), recites that doubts had arisen
whether subjects entering into the service of the King's enemies on board
privateers and other ships, having commissions from France and Spain,
and having by such adherence been guilty of high treason, could be deemed
guilty of felony within the intent of the Act of 1698, and be triable by the
Court of Admiralty by virtue of the said Act; and then enacts (sect. 1) that
' all persons, being natural-born subjects or denizens of His Majesty,
who during the present or any future wars, shall commit any hostilities
upon the sea, or in any haven, river, creek, or place, where the admiral or
admirals have power, authority, or jurisdiction, against His Majesty's
subjects, by virtue or under colour of any commission from any of His
Majesty's enemies, or have been or shall be any other ways adherent or
giving aid or comfort to His Majesty's enemies upon the sea, or in any
haven, river, creek, or place, where the admiral or admirals have power,
authority, or jurisdiction, may be tried as pirates, felt)ns, and robbers
in the said Court of Admiralty, on ship-board, or upon the land, in the
same manner as persons guilty of piracy, felony, and robbery, are by the
said Act (of 1698) (p) directed to be tried ; and such persons being upon
such trial convicted thereof, shall suffer such pains ' (g) . . . ' as any
other pirates, felons, and robbers ought, by virtue of the said recited
Act (of 1698), or any other Act, to suffer ' (r).

This enactment does not in terms say that the offenders shall be
deemed pirates, &c., as in the Act of 1698 [ante, p. 259).

On an indictment framed upon this enactment the question was
raised whether adhering to the King's enemies in hostilely cruising in
their ships could be tried as piracy under the usual commission granted
under the Act of 1536 {ante, p. 257). The question was reserved for con-
sideration of the judges ; and it was agreed by eight judges who were
present (s), that the prisoner had been well tried under the commission :

(nn) As to present punishments, see post, was repealed in 1864 (27 & 28 Viet. e. 23,

p. 266. s. 1).

(o) Bys. 2 every vessel fitted out to trade, (p) Supra, p. 259.

&o., with pirates, and also the goods shall (q) For present punishments, see post,

be forfeited, half to the Crown and halt to p. 266.

the informer. In the second edition, 32 [r) S. 2 contains a proviso that persons

Geo. III. c. 25, s. 12, was here inserted, but tried and convicted or acquitted under

as that Act was only to continue in force the Act shall not be liable to be indicted

during the then war with France, it seems again in Great Britain or elsewhere for the

to have expired. See 2 East, P. C. 801 same fact or high treason. By s. 3 the Act

n. (a), and Crabb's Index to the Statutes. is not to prevent offenders not tried under

C. S. G. 22 Geo. III. e. 25, which pro- its provisions from being tried within the

hibited the ransoming any ship belonging realm for high treason under the Offences

to any subject of His Majesty, of goods on at Sea Act, 1536, ante, p. 257.
board the same, which should be captured (s) Loughborough, C.B., Skynner, J.

by the subjects of any state at war with his Gould, J., Willes, J., Ashhurst, J., Eyre, B.,

Majesty, or by any persons committing Perryn, B., and Heath, J.,who met Nov. 11,

hostilities against His Majesty's subjects, 1782.

264 Of Offences Relating to the Law of Nations. LBook il.

for that taking the Acts of 1698 and 1744 together, and the doubt
raised in the latter, and also its enactment that in the instances therein
mentioned, and also in case of any other adhering to the King's enemies,
the parties might be tried as pirates by the Court of Admiralty according
to that statute, it was substantially declaring that they should be deemed
pirates ; and that it was a just construction in their favour to allow them
to be tried as such by a jury (t).

By the Piracy Act, 1850 (13 & 14 Vict. c. 26), s. 2, ' Whenever any of
His Majesty's ships or vessels of war, or hired armed vessels or their boats,
or any of the officers or crews thereof shall attach or be engaged with any
persons alleged to be pirates, afloat or ashore, it shall be lawful for the
High Court of Admiralty in England, and for all Courts of Admiralty
in any dominions of His Majesty beyond the seas ... to take cognisance
and to determine whether the person, or any of them so attached or
engaged were pirates, and to adjudge what was the total number of
pirates so engaged or attached, specifying the number of pirates captured
and what were the vessels or boats engaged' (u).

Sect. III. — Accessories and Punishment.
Accessories to Piracy.

Accessories. — Until 1700, accessories to piracy were triable only by the
civil law if their offence was committed on the sea, and one who within
the body of a county, knowing, received and abetted a pirate was not
triable by the common law, the original offence being solely cognisable
by another jurisdiction (v). This rule flowed from the theory that piracy
not being a common-law felony, the common-law rule as to accessories
did not apply, and from the common-law rules as to jurisdiction (w).
This anomaly has been removed by legislation.

By sect. 9 {x) of the Act of 1698 (11 Will. III. c. 7), every person and
persons whatsoever, who shall (after September 29, 1700) either on the land
or upon the seas, knowingly or wittingly set forth any pirate ; or aid and
assist, or maintain, procure, command, counsel, or advise, any person or per-
sons whatsoever, to do or commit any piracies or robberies upon the seas ;
and such person and persons shall thereupon do or commit any such piracy
or robbery, then all and every such person or persons whatsoever, so as

(t) Evans's case, MS. Gould, J., 2 East, escape out of prison ; and, on a return to a
P. C. 798, 799. 18 Geo. II. c. 30, s. 3, pro- habeas corpus, the prisoner was remanded,
Vides that the Act shall not prevent any though it appeared that the fact was corn-
offender who shall not be tried according mitted by him within the body of a county,
thereto from being tried for high treason The Court of King's Bench holding, that
within this realm under 28 Hen. VIII. c. 16. because Scadding's offence depended on the

(m) See the Magellan Pirates [1853], 1 piracy committed by the prmcipal, of which
Ecel. & Adm. (Spinks) 81. Ss. 3, 5 deal the temporal judges had no cognisance, and
with condemnation of vessels, &c., seized, was, as it were, an accessorial offence to the
and returns to the Admiralty of adjudica- first piracy which was determinable by the
tions with a view of assigning fitting rewards admiral, it was sufficient ground for re-
fer capture. manding him. Yelv. 134. 2 East, P. C.

{v) Admiralty case, 13 Co. Rep. 53. And 810.

a little before this case the law appears to (w) See Mr. R. S. Wright's Report on

have been so considered in the case of one Piracy Acts, Pari. Pap. [1878] H. L. No.

Scadding, who was committed by the 178, p. 18.

Court of Admiralty for aiding a pirate to (x) S. 8 in the common printed editions.

Chap, i.] Punishment of Piracy. 265

aforesaid setting forth any pirate, or aiding, assisting, maintaining, pro-
curing, commanding, counselling, or advising, the same either on the land
or upon the sea, shall be and are hereby declared, and shall be deemed
and adjudged to be accessory to such piracy and robbery, done and
committed. Sect. 10 {y) enacts, 'and further, that after any piracy or
robbery is or shall be committed by any pirate or robber whatsoever,
every person and persons, who, knowing that such pirate or robber has
done or committed such piracy and robbery, shall, on the land or upon
the sea, receive, entertain, or conceal any such pirate or robber, or receive
or take into his custody any ship, vessel, goods, or chattels, which have
been by any such pirate or robber piratically and feloniously taken ;
shall be, and are hereby likewise declared, deemed, and adjudged to be
accessory to such piracy and robbery (2) : and . . . that all such
accessories to such piracies and robberies shall be inquired of, tried,
heard, determined, and adjudged, after the common course of the laws
of this land, according to the Offences at Sea Act, 1536, as the prin-
cipals of such piracies and robberies may and ought to be, and no other-
wise : and being thereupon attainted, shall suffer such pains . . . and
in like manner, as such principals ought to suffer, according to the
Offences at Sea Act, 1536, which is thereby declared to be and shall
continue in full force . . .' {a).

The Piracy Act, 1721 (8 Geo. I. c. 24), after reciting that ' whereas
there are some defects in the laws for bringing persons who are accessories
to piracy and robbery upon the seas to condign pimishment, if the principal
who committed such piracy or robbery is not or cannot be apprehended
and brought to justice,' enacts (sect. 3) that ' all persons whatsoever, who
by the Act of 1698 are declared to be accessory or accessories to any piracy
or robbery therein mentioned, are hereby declared to be principal pirates,
felons, and robbers, and shall and may be inquired of, heard, deter-
mined, and adjudged, in the same manner as persons guilty of piracy and
robbery may and ought to be inquired of, tried, heard, determined, and
adjudged according to that statute ; and being thereupon attainted
and convicted, shall suffer such pains . . . and in like (&) manner
as pirates and robbers ought by the said Act to suffer.'

Punishment.

The Offences at Sea Act, 1799 (39 Geo. III. c. 37), after reciting the
Act of 1536, enacts (sect. 1) that • all and every offence and offences com-
mitted (after May 10, 1799) upon the high seas out of the body of any
county of this realm, shall be and they are hereby declared to be offences
of the same nature respectively, and to be liable to the same punishments
as if they had been committed upon the shore, and shall be inquired of,'
&c., ' in the same manner as treasons,' &c., ' under the Offences at Sea
Act, 1536 ' {hi).

(y) S. 9 in the common printed editions. p. 132, appears to cover the same ground

(z) As to the present punishment of as this enactment, except, perhaps, as to

accessories, see the Piracy Act, 1837, s. 4, piracy jure gentium.

'post, p. 266, and the Accessories and (b) As to present punishments, see post,

Abettors Act, 1861, ante, p. 130. p. 266.

(a) S. 7 of the Accessories and Abettors (hi) Ante, p. 257.

Act, 1861 (24 & 25 Vict. u. 94), ante.

266 Of Offences Mating to the Law of Nations, [book li.

Under the Acts of 1536 (c), 1698 (d), 1717 (e), 1721 (/), and 1744 (g),
piracy was punishable by death, and forfeiture of lands, goods, and
chattels. Offenders within the Acts of 1536 and 1721 were deprived of
benefit of clergy (h). In 1820 benefit of clergy was allowed to persons
tried under the Act of 1536 for offences at sea in all cases in which benefit
of clergy would have been allowed as to the offences if committed on
land (i). By the Piracy Act, 1837 (7 Will. IV. & 1 Vict. c. 88), s. 1 (;), the
provisions of the above stated Acts as to the punishment of the crime of
piracy or of any offence in any of the said Acts declared to be piracy, or
of accessories thereto respectively, were repealed, and the punishment of
such offences (if tried in England) is now regulated by the following
sections of the Act of 1837, as modified by the Penal Servitude Acts of 1857
and 1891 {k).

Sect. 2 enacts, ' Whosoever, with intent to commit or at the time of or
immediately before or immediately after committing the crime of piracy
in respect of any ship or vessel, shall assault, with intent to murder, any
person being on board of or belonging to such ship or vessel, or shall stab,
cut, or wound any such person, or unlawfully do any act by which the
life of such person may be endangered, shall be guilty of felony, and being
convicted thereof shall suffer death as a felon ' (l).

By sect. 3, ' Whosoever shall be convicted of any offence which by
any of the Acts hereinbefore referred to (m) amounts to the crime of
piracy, and is thereby made punishable by death, shall be liable ... to
be transported (w) beyond the seas for the term of the natural life of such
offender. . . . (o) '

By Sect. 4, ' In the case of every felony punishable under this Act
every principal in the second degree and every accessory before the fact
shall be punishable with death or otherwise in the same manner as the
principal in the first degree is by this Act punishable ; and every accessory
after the fact to any felony punishable under this Act shall, on conviction,
be liable to be imprisoned for any term not exceeding two years ' (p).

(d) 11 Will. III. e. 7, BS. 7, 8, 9, 10, 11. (o) Or for any term not less than three
(c) 4 Geo. I. 0. 11, s. 1, ante, p. 262. years, or to be imprisoned with or without
( /) 8 Geo. I. c. 24, s. 1, ante, p. 262. hard labour for not more than two years
(g) 18 Geo. II. c. 30, s. 1, ante, p. 263. (54 & 55 Vict. c. 69, s. 1, ante, pp. 211, 212).
{h) 28 Hen. VIII. c. 15, s. 3 ; 8 Geo. I. (p) This statute having repealed the

c. 24, s. 4 (rep. 1837). punishment of piracy ' at common law,'

(»■) 60 Geo. III. & 1 Geo. IV. c. 90, s. 1. which was before punishable by 28 Hen.

(j) Ss. 1, 4 of the Act of 1837 were VIII. u. 15, s. 3, with death without benefit

repealed as spent in 1874 (37 & 38 Vict. of clergy, a difficulty arises as to what is

c. 35). See Interpretation Act, 1889 (52 now the punishment for that offence. The

& 53 Vict. c. 63), 8. 11, ante, p. 5. Offences at Sea Act, 1799 (39 Geo. III. c. 37),

(k) Ante, pp. 209, 210. s. 1, ante, p. 265, by making all offences

{I) This sentence may be recorded (4 committed on sea of the same nature as if

Geo. IV. c. 48, s. 1, ante, p. 206). Where the they were committed on shore, seems to

indictment charges a, stabbing, cutting, or have made piracy jure gentium a felony,

wounding, the jury may acquit of the which it was not at common law, or by 28

felony, and convict of the stabbing, cutting. Hen. VIII. o. 15. By 60 Geo. III. & 1

or wounding (14 & 15 Vict. c. 19, s. 5). Geo. IV. c. 90, any person found guilty of

(m) i.e., 28 Hen. VIII. c. 15 ; 11 Will. III. any capital crime or offence committed

c. 7 ; 4 Geo. I. c. 11 ; 8 Geo. I. c. 24 ; 18 upon the sea, which, if committed upon the

Geo. II. c. 30. land would be clergyable, was entitled to

(n) Penal servitude substituted by 20 & the benefit of clergy in like manner as if he

CHAP, i.] Trial of Piracy. 267

By sect. 16 of the Capital Punishment (Ireland) Act, 1842 (5 & 6 Vict.
0. 28), persons convicted of any oHence which amounts to the crime of
piracy by any Act in force in Ireland are liable to penal servitude for life.

Sect. IV. — Jurisdiction and Procedure.

Piracy has been put into the same position as treason and felony with
respect to pleas of not guilty, refusal to plead (q), and peremptory challenge
of jurors in excess of the number which the law allows (r).

Of the Courts hy which the Offence of Piracy may he tried :
(a) Trial in England.

The offence of piracy was formerly cognisable only by the Admiralty
Courts, which proceeded without a jury, after the course of the civil law
and with the rules of that law as to torture and proof. The inconveniences
found to attend this procedure led to the passing of the Offences at Sea
Act, 1536 (28 Hen. VIII. c. 15) (ante, p. 257). That statute enacted,
that this offence and certain other offences committed within the juris-
diction of the admiral should be tried under the King's Commission, by
commissioners nominated by the Lord Chancellor, the indictment being
first found by a grand jury of twelve men, and afterwards tried by another
jury as at common law, and that the course of proceeding should be
according to the law of the land. Amongst the commissioners there
were always some of the common-law judges (s). But the Act merely
altered the mode of trial in the Admiralty Court ; and its jurisdiction
continued to rest on the same foundations as it did before that Act. It
is regulated by the civil law, et per consuetudines marinas grounded on the
law of nations, which may possibly give to that Court a jurisdiction that
our common law has not {t).

By the Offences at Sea Act, 1844 (7 & 8 Vict. c. 2), s. 1, justices of
Assize, Oyer and Terminer, and Gaol Delivery are given all the powers,
which by any Act are given to the commissioners named in any commis-
sion of Oyer and Terminer, for the trying of offences committed on the
high seas or in other places within the jurisdiction of the Admiralty of
England (u). This Act has rendered it unnecessary to hold criminal

had committed such offence upon land. gentium (or at common law) is to be treated

By 7 & 8 Geo. IV. c. 28, s. 6, clergy was as a felony of the same kind, and liable to

abolished, and by s. 7 no person convicted the same punishment, as if the same act

of /etofty was to suffer death unless for some had been done upon land, and that the

felony excluded from clergy, on or before offender is triable either under a commission

the first day of that session of Parliament ; founded on 28 Hen. VIII. o. 15, or at the

and by s. 12, ' all offences prosecuted in the Central Criminal Court, or at the assizes.'

High Court of Admiralty shall, upon every C. S. G.

first and subsequent conviction, be subject (j) 7 & 8 Geo. IV. c. 28, ss. 1, 2 (E) ;

to the same punishments, whether of death 9 Geo. IV. c. 54, ss. 7, 8 (I).

or otherwise, as if such offences had been (r) 7 & 8 Geo. IV. c. 28, s. 3 (E).

committed upon land.' See also the Crimi- («) 28 Hen. VIII. c. 15, s. 2. Generally

nal Law Consolidation Acts of 1861. By two. 4 Bl. Com. 269.

4 & 6 Will. IV. c. 36, piracy may be tried at {t) R. v. Depardo, 1 Taunt. 29, Sir James

the Central Criminal Court. ' On the Mansfield, C.J.

whole, it seems that each act of piracy jure (u) See R. v. Dudley, 14 Q.B.D. 273, 560.

268 Of Offences Mating to the Law of Nations, [book ii.

sessions of the Court of Admiralty, but does not affect the jurisdiction
of the Central Criminal Court [v), nor the power of the Crown to issue
special commissions under the Act of 1536.

It is expressly provided by sect. 6 of the Territorial Waters Jurisdiction
Act, 1878 (41 & 42 Vict. c. 73), which applies to the whole of the King's
dominions (see preamble), that that Act shall not prejudice nor affect the
trial in manner heretofore (August 16, 1878) in use of any act of piracy as
defined by the law of nations, or affect or prejudice any law relating
thereto : and where any act of piracy as de&ied by the law of nations
is also any such offence as is declared by this Act to be within the juris-
diction of the admiral, such offence may be tried in pursuance of this Act
or in pursuance of any other Act of ParUament, law, or custom relating
thereto.

(&) Trial in British Possessions Abroad.

As a general rule it is not within the province of a colonial legislature to
deal directly with the offence of piracy jure gentium, or directly to assume
jurisdiction over piratical acts done outside the territorial waters of the
colony. During the nineteenth century trials for piracy in England and
Ireland were very rare, but they were somewhat more frequent in
British possessions adjacent to regions where the slave trade was carried
on, or to Asiatic communities of piratical propensities. The extent to
which the English Acts already referred to apply to British possessions
varies according to the history and legislation of the particular possession,
i.e., with the extent^to which the English law against piracy is the common
law of the possession, or has been incorporated by its legislation. It
would seem that the legislature of a British possession has no authority
to alter the definition of piracy jure gentium (w).

By the Act of 1698 (11 Will. III. c. 7), after reciting the difficulties
found in bringing to justice pirates in the East and West Indies, and the
growth of piracy in these parts it is enacted (sect. 1), that all piracies,
felonies, and robberies, committed on the high seas or within the juris-
diction of the admiral, might be tried and punished in any place at sea
or upon the land in any of the King's islands, plantations, colonies, forts,
or factories, to be appointed by the King's commission in the manner
therein directed and according to the civil law and the methods and rides
of the Admiralty {x).

By the Offences at Sea Act, 1806 (46 Geo. III. c. 54), it is provided
that piracy, &c., within the jurisdiction of the admiral should be tried
according to the common law of this realm used for offences committed upon
the land within the realm, and not otherwise, in any British possession
by the King's commission under the Great Seal of Great Britain.

By the Australian Courts Act, 1828 (9 Geo. IV. c. 83), the Supreme'

Courts of New South Wales and Tasmania are given jurisdiction {inter

alia) over piracies (s. 4), which are to be dealt with as if the offence had

been committed and tried in England.

(«) 4 & 5 Will. IV. c. 36, s. 22. Quelch [1704], 14 St. Tr. 1067, at Boston,

(w) See note of Sir S. Griffith to draft Mass. And see R. v. Bonnet [1718], 15 St.

Queensland Criminal Code, p. x. Tr. 1231, for a trial at Vice-Admiralty

(x) Ss. 1-6 were repealed in 1867 Sessions at Charlestown, North Carolina.

(S. L. R.). For a trial under them, see R. v.

CHAP. I.] Trial of Piracy. 269

By the Admiralty Offences Colonial Act, 1849 (12 & 13 Vict. c. 96), ' If
any person within any colony {y) shall be charged with the commission of
any . . . piracy, felony, robbery ... or other offence, of what natiire or
kind soever committed upon the sea, or in any haven, river, creek, or place
where the admiral or admirals have power, authority, or jurisdiction,
or if any person charged with the commission of any such offence upon
the sea, or in, &c., shall be brought for trial to any colony, then, and in
every case all magistrates, justices of the peace, public prosecutors,
juries, judges, courts, public officers, and other persons in such colony
shall have and exercise the same jurisdiction and authorities for inquiring
of, trying, hearing, determining, and adjudging such offences, and they
are hereby respectively authorised, empowered, and required to institute
and carry on all such proceedings for bringing the person so charged
for trial as aforesaid, and for and auxiliary to and consequent upon the
trial of any such person for any such offence wherewith he may be charged
as aforesaid as hy the law of such colony would and ought to have been
had and exercised or instituted and carried on by them respectively if
such offence had been committed and such person had been charged
with having committed the same upon any waters situate within the
limits of any such colony and within the limits of the local jurisdiction
of the courts of criminal justice of that colony ' (z).

The definition of colony in sect. 5 of this Act includes all British
possessions except British India and the British Islands : but was extended
in 1860 (23 & 24 Vict. c. 88, s. 1) so as to include British India, subject
to a right in favour of the accused in certain cases to be tried by the
High Courts of Bengal, Bombay, or Madras (sect. 2).

By sect. 2 of the Act of 1849 provision was made for the trial in the
colonies of offences involving homicide, where the death was on land
from an injury inflicted at sea, or at sea from an injury inflicted on land.
And by the Admiralty Offences Colonial Act, 1860 (23 & 24 Vict. c. 122),
Colonial legislatures were empowered to include in their own legislation
provisions similar to those last above stated, which were derived from
9 Geo. IV. c. 31, s. 8, and are now as to England and Ireland included in
sect. 68 of the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100).

The Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict. c. 27),
does not give any jurisdiction to Colonial Admiralty Courts to try
any person for an offence which, by the law of England, is punishable
on indictment, and in substance deals only with civil jurisdiction of these
Courts (sect. 2, subs. 3 (c) ).

In a case tried at Penang in 1840 {a), the accused was tried with others
on the Admiralty side of the Court with piracy, i.e. forcible capture on
the high seas of a boat, the captain and crew whereof were put in bodily
fear and in danger of their lives. The pleas raised were (1) that the accused
was not a British subject nor a person amenable to the law of England
respecting piracy, (2) that the acts alleged to be piratical, were acts of
war if)).

[y) i.e. all ' British possessions ' outside Settlements) Reports, 169.

the ' British Islands ' (see s. 5 and 23 & 24 (a) R. v. Tunkoo Mahomed. Saad, 2

Vict. c. 88). Kyshe (Straits Settlements) Rep. 18.

(z) For instance of a trial under this Act, (6) See Swetenham's Malaya as to the

Bee R. V. Nya Abu [1886], 4 Kyshe (Straits history of Siam and Kedah.

( 270a )

CANADIAN NOTES.

OF PIEACY.

By Law of Nations. — Code see. 137.

Piratical Acts. — Code sec. 138.

Violence with Piratical Acts. — Code sec. 139.

Jurisdiction and Procedure. — Code sec. 591.

Wa7'rant of Apprehension. — Code sec. 656.

A charge against a seaman on a British ship not a British subject,
for inciting a revolt upon the ship while on the high seas, may not
if taken only under Code sec, 138 be made without consent of the
Governor-General, under sec. 591, obtained prior to the laying of
the information. Mr. Justice Ritchie held further that if the proceed-
ings for the offence are taken under the Merchant Shipping Act,
1894 (Imp.), sec. 686, the consent of the Governor-General is not
required, and Code sec. 591 would not apply. But a different view
was taken by Mr. Justice Weatherbe who held that sec. 591 applies
to the procedure in Canadian Courts in respect of offences committed
within the Admiralty Jurisdiction whether the proceedings are taken
under the Criminal Code or the Imperial Merchant Shipping Act
or the Admii^alty Offence Act, 1849. R. v. Heckman, 5 Can. "Cr. Cas.
242.

A sea harbour enclosed within headlands such as the harbour
of Halifax is within the body of the adjacent coimty and criminal
offences committed in such harbour even upon foreign ships are not
within the Admiralty Jurisdiction except in the special cases provided
by statute.

A charge of theft by foreigners upon and from any foreign ship
while lying in a harbour forming part of the body of the county,
may be prosecuted within the county without obtaining the leave of
the Governor-General. R. v. Schwab, 12 Can. Cr. Cas. 540.

The Great Lakes at the boundary of the Province of Ontario are
within the jurisdiction of the Admiralty. R. v. Sharpe, 50 O.P.R. 135.

(271)

CHAPTER THE SECOND.

OF DEALING IN SLAVES, ETC.

Sect I. — The Slave Trade Acts.

A list of enactments still in force relating to the slave trade is given in
note (a) below. Most of these Acts apply to the whole of the King's
dominions.

The Slave Trade Act, 1824 (5 Geo. IV. c. 113), also described as the
Slave Trade Consolidation Act (6), repealed all the prior Acts and enact-
ments relating to the slave trade, except so far as they had repealed
prior Acts or enactments, or had been acted upon, or were expressly con-
firmed by the Act. It enacts (sect. 2), that it shall not be lawful, except
in such special cases as are thereinafter mentioned (c), to deal in slaves, or
to remove, import, ship, trans-ship, &c., any persons as slaves, or to fit
out, employ, &c., any vessels in order to accomplish such unlawful objects,
or to lend money, &o., or to become guarantee, &c., for agents in relation
to such objects, or in any other manner to engage directly or indirectly,
therein, as a partner, agent, or otherwise ; or to ship, &c., any money,
goods, or effects, to be employed in accomplishing any of these unlawful
objects ; or to command, or embark on board, or contract for commanding
or embarking on board, any vessel. Sec, in any capacity, knowing that
such vessel, &c., is employed, or intended to be employed, in such un-
lawful objects ; or to insure or contract for insuring, any slaves or other
property, employed, or intended to be employed, in accomplishing any
of these unlawful objects. Pecuniary penalties and forfeitures are (by
sects. 3-8) imposed upon persons offending, by engaging in such unlawful
objects (d).

By sect. 9, ' If any subject or subjects of His Majesty, or any person

(a) 5 Geo. IV. o. 113, ss. 2-11, 12, 39, 40, pealed in 1833 by 3 & 4 WiU. IV. c. 73,

and 47 ; 3 & 4 Will. IV. c. 73, s. 12 ; 7 which, after manumitting, as from Aug. 1,

Will. IV. & 1 Vict. c. 91, s. 1 ; 6 & 7 Vict. 1834, aU slaves in the British Colonies,

c. 98, ss. 1,4; 27 & 28 Vict. o. 24, ss. 12-18 ; plantations and possessions abroad, enacts,

36 & 37 Vict. u. 59, ss. 4, 5 (East Africa) ; ' The children thereafter to be born to any

36 & 37 Vict. 0. 88 ; 39 & 40 Vict. c. 46 such person and the offspring of such chil-

(India) ; 42 & 43 Vict. o. 38, s. 3 (East dren shall in like manner be free from their

Africa) ; 53 & 54 Vict. c. 27, ss. 6, 13, 16, 18. birth ; and slavery shall be and is hereby

As to Pacific Islanders, see post, p. 283. As utterly and for ever abolished and declared

to trial of slave-trade offences in Consular unlawful throughout the British colonies.

Courts, see post, p. 282. plantations and possessions abroad ' (a. 12).

(6) Repealed by the Slave Trade Act, The rest of this Act was repealed in 1890

1873 (36 & 37 Vict. c. 88), s. 30, except ss. (S. L. R.). As to the effect of the repeal of

2-11, s. 12 down to ' taken to be in full the exceptions from the Act of 1824, see R.

force,' ss. 39, 40, and 47. v. Jennings, post, p. 273.

Act of 1824, These exceptions were re- any criminal offence.

272 Of Offences Relating to the Law of Nations, [book ii.

or persons residing or being within any of the dominions, forts, settle-
ments, factories, or territories now or hereafter belonging to His Majesty,
or being in His Majesty's occupation or possession, or under the govern-
ment of the united company of merchants of England trading to the East
Indies (e), shall ' (after January 1, 1825), ' upon the high seas, or in any
haven, river, creek, or place where the admiral has jurisdiction, know-
ingly and wilfully carry away, convey, or remove or aid, or assist in carry-
ing away, conveying, or removing, any person or persons as a slave or
slaves, or for the purpose of his, her, or their being imported or brought as
a slave or slaves, into any island, colony, country, territory, or place what-
soever, or for the purpose of his, her, or their being sold, transferred, used,
or dealt with as a slave or slaves ; or shall (after January 1, 1825 . . . (/),
upon the high seas, or within the jurisdiction aforesaid, knowingly
and wilfully ship, embark, receive, detain, or confine, or assist in shipping,
embarking, receiving, detaining, or confining, on board any ship, vessel,
or boat, any person or persons for the purpose of his, her, or their being
carried away, conveyed or removed, as a slave or slaves, or for the
purpose of his, her, or their being imported or brought as a slave or
slaves, into any island, colony, country, territory, or place whatsoever,
or for the purpose of his, her, or their being sold, transferred, used, or
dealt with as a slave or slaves, then and in every such case the person
or persons so offending shall be deemed and adjudged guilty of piracy (gi),
felony, and robbery . . . ' (h).

By sect. 10, ' If any persons shall deal or trade in, purchase, sell,
barter, or transfer, or contract for the dealing or trading in, purchase,
sale, barter, or transfer of slaves, or persons intended to be dealt
with as slaves, or shall . . . carry away or remove, or contract for
the carrying away or removing of slaves or other persons, as or in
order to their being dealt with as slaves, or shall import or bring or
contract for the importing or bringing, into any place whatsoever, slaves
or other persons, as or in order to their being dealt with as slaves, or
shall, . . . (i) ship, trans-ship, embark, receive, detain, or confine on
board, or contract for the shipping, trans-shipping, embarking, receiving,
detaining, or confining on board of any ship, vessel, or boat, slaves or
other persons, for the purpose of their being carried away or removed, as
or in order to their being dealt with as slaves ; or shall ship, trans-ship,
embark, receive, detain, or confine on board, or contract for the shipping,

(e) These territoriea are now under the made the penalty death without benefit of

t!rown. Habitual dealing in slaves is clergy, with loss of lands, &c. By 7 WiU.

punishable under s. 371 of the Indian Penal IV. & 1 Vict. c. 91, s. 1, transportation for

Code ; isolated dealings under s. 370 ; and Hfe was substituted for the death penalty,

kidnapping in order to subject to slavery The present punishment by the effect of the

under s. 367. See Mayne Ind. Cr. L. (ed. Penal Servitude Acts, 1857 and 1891, ante,

1 896) p. 647. Offences under these sections, pp. 2 11 , 2 12, is penal servitude for life or not

it committed by a subject of the King, or of less than three years, or imprisonment with

an allied force on the high seas, or in Asia or without hard labour for not less than

or Africa, are punishable in India under the two years. Forfeiture of lands, goods and

Slave Trade Act, 1876 (39 & 40 Vict. c. 46), chattels was aboKshed in 1870 (33 & 34

s- 1. Vict. c. 23), and the portions of 7 Will. IV.

(/) See note (c), p. 271. & 1 Vict. c. 91 superseded by the above-

((?) As to piracy, vide ante, p. 265. stated Acts as to punishment, were re-

{k) The words here omitted were re- pealed in 1890 and 1893 (S. L. R.).
pealed in 1888 (S, L. B.). The section (i) See note (c), p. 271,

CHAP. 11.] Dealing in Slaves. 273

trans-shipping, embarking, receiving, detaining, or confining on board of
any ship, vessel, or boat, slaves or other persons, for the purpose of their
being imported or brought into any place whatsoever, as or in order to
their being dealt with as slaves ; or shall fit out, man, navigate, equip,
despatch, use, employ, let, or take to freight or on hire, or contract for
the fitting out, manning, navigating, equipping, despatching, using,
employing, letting, or taking to freight, or on hire, any ship, vessel, or
boat, in order to accomplish any of the objects, or the contracts in rela-
tion to the objects, which objects and contracts have hereinbefore been
declared unlawful ; or shall knowingly and wilfully {j) lend or advance,
or become security for the loan or advance, or contract for the lending or
advancing, or becoming security for the loan or advance, of money, goods,
or effects employed or to be employed, in accompHshing any of the
objects, or the contracts in relation to the objects, which objects and
contracts have hereinbefore been declared unlawful ; or shall knowingly
and wilfully become guarantee or security, or contract for the becoming
guarantee or security, for agents employed, or to be employed, in accom-
plishing any of the objects, or the contracts in relation to the objects,
which objects and contracts have hereinbefore been declared unlawful,
or in any other manner to engage or to contract to engage, directly or
indirectly therein, as a partner, agent, or otherwise ; or shall knowingly
and wilfully ship, trans-ship, lade, receive, or put on board, or contract
for the shipping, trans-shipping, lading, receiving, or putting on board of
any ship, vessel, or boat, money, goods, or effects to be employed in
accomplishing any of the objects, or the contracts in relation to the
objects, which objects and contracts have hereinbefore been declared
unlawful ; or shall take the charge or command, or navigate, or enter
and embark on board, or contract for taking the charge or command, or
for the navigating or entering and embarking on board of any ship,
vessel, or boat, as captain, master, mate, surgeon, or super-cargo, knowing
that such ship, vessel, or boat is actually employed or is, in the same
voyage, or upon the same occasion, in respect of which they shall so take
the charge or command, or navigate, or enter and embark, or contract
so to do as aforesaid, intended to be employed in accomplishing any of
the objects, or the contracts in relation to the objects, which objects and
contracts have hereinbefore been declared unlawful ; or shall knowingly
and wilfully insure or contract for the insuring of any slaves, or any
property, or other subject-matter engaged or employed in accomplishing
any of the objects, or the contracts in relation to the objects, which objects
and contracts have hereinbefore been declared unlawful ; or shall wilfully
and fraudulently forge or counterfeit any certificate, certificate of valua-
tion, sentence or decree of condemnation or restitution, copy of sentence
or decree of condemnation or restitution, or any receipt (such receipts
being required by this Act), or any part of such certificate, certificate of
valuation, sentence or decree of condemnation or restitution, copy of
sentence or decree of condemnation or restitution, or receipt as aforesaid ;
or shall knowingly and wilfully utter or publish the same, knowing it to

0') Counts in an indictment which mittedly bad. R. u. Jennings, 1 Cox, 115,
omitted these words were quashed as ad- Wightman and Cresswell, JJ.

VOL. I. ' T

274 Of Offences Mating to the Law of Nations, [book il.

be forged or counterfeited, with intent to defraud His Majesty, or any-
other person or persons whatsoever, or any body pohtic or corporate ;
then and in every such case the person or persons so offending, and
their procurers. Counsellors, aiders, and abettors, shall be and are
hereby declared to be felons, and shall be transported {h) beyond seas
for a term not exceeding fourteen [1) years, or shall be confined and
kept to hard labour for a term not exceeding five years, nor less
than three (m) years, at the discretion of the Court before whom such
offender or offenders shall be tried and convicted.'

Seamen serving on Slavers,— Sect. 11. . . . 'If any person shall enter
and embark on board, or contract for the entering and embarking on
board of any ship, vessel, or boat, as petty officer, seaman, marine, or
servant, or in any other capacity not hereinbefore specifically mentioned,
knowing that such ship, vessel, or boat is actually employed, or is, in
the same voyage, or upon the same occasion, in respect of which they
shall so enter and embark on board, or contract so to do as aforesaid,
intended to be employed in accomplishing any of the objects, or the con-
tracts in relation to the objects, which objects and contracts have herein-
before been declared unlawful, then and in every such case the persons
so offending, and their procurers, counsellors, aiders, and abettors, shall
be and they are hereby declared to be, guilty of a misdemeanor only, and
shall be punished by imprisonment for a term not exceeding two years.'

Criminal Clauses not to affect Civil and Penal Clauses. — Sect. 12.
' Provided always, that nothing in this Act contained, making piracies,
felonies, robberies, and misdemeanors of the several ofiences aforesaid,
shall be construed to repeal, annul, or alter the provisions and enactments
in this Act also contained, (viz., sects. 5-8, ante, p. 271) imposing forfeitures
and penalties, or either of them upon the same offences, or to repeal,
annul, or alter the remedies given for the recovery thereof ; but that
the said provisions and enactments, imposing forfeitures and penalties,
shall in all respects be deemed and taken to be in full force ' (n).

Informers exempted from Penalties. — Sect. 40. ' Provided always
if any person offending as a petty officer, seaman, ndarine, or servant,
against any of the provisions of this Act, shall, within two years after
the offence committed, give information on oath before any competent
magistrate against any owner or part-owner, or any captain, master,
mate, surgeon, or supercargo of any ship or vessel, who shall have com-
mitted any ofience against this Act, and shall give evidence on oath against
such owner, etc., before any magistrate or Court before whom such

(k) Penal servitude substituted in 1857 penal servitude of three years, or imprison-

(20 & 21 Vict. c. 3, H. 2), ante, p. 211. ment with or without hard labour for not

(I) Nor leas than three years (54 & ,55 over two years. It is submitted that the

Vict. c. 69, s. 1, ante, p. 211). Act of 1891 does (if the Act of 1846 had

(m) The provisions as to imprisonment not already done it) supersede the power

are not specifically repealed. By 9 & 10 of imprisonment given in s. 9.

Vict. 0. 26, s. 1 (rep. 1895), where Courts (n) The rest of the section is omitted as

were empowered or required to impose a repealed in 1873 (36 & 37 Vict. c. 88, s. 30).

sentence of transportation for over seven Ss. 13-38 were repealed in 1873 (36 & 37

years, they were authorised to substitute a Vict. c. 88, s. 30). S. 39 avoids mort-

term of not less than seven years, or im- gages, &c., given for purposes rendered

prisonment with or without hard labour for unlawful by the Act, except against hona

not more than two years. 54 & 55 Vict. /ide purchasers or holders, without notice

c. 69, s. 1, authorises a minimum term of of negotiable instruments.

CHAP. I].] Dealing in Slaves. 275

offender may be tried ; or if such person or persons so offending shall
give information to any of His Majesty's ambassadors, ministers, etc., or
other agents, so that any person or persons owning such ship or vessel,
or navigating or taking charge of the same, as captain, master, mate,
surgeon, or supercargo, may be apprehended; such person or parsons
so giving information and evidence shall not be liable to any of the
pains or penalties under this Act incurred in respect of his offence, and
His Majesty's ambassadors, ministers, etc., or other agents are hereby
required to receive any such information as aforesaid and to transmit the
particulars thereof, without delay, to one of His Majesty's principal secre-
taries of state, and to transmit copies of the same to the commanders of
His Majesty's ships or vessels, then being in the said port or place ' (o).
In February, 1845, the ' Felicidade," a Brazilian schooner, bound on
a voyage to Africa for the purpose of bringing back a cargo of slaves,
arrived off the African coast, and was observed by Her Majesty's ship
' Wasp,' stationed off the slave coast for the prevention of the slave
trade, who, upon approaching the ' Felicidade,' manned two boats, and
gave the command of them to S., one of his officers, with orders to board
the ' Felicidade,' and if she appeared to be fitted up for the slave trade
to capture her. S., in obedience to these orders, went with the two boats
to the ' Felicidade.' At the time of her capture the ' Felicidade ' was fitted
up for the reception of a cargo of slaves, and was within sixteen miles
of the shore. The next day Captain Usher placed the ' Felicidade ' under
the command of S., and directed him to steer a particular course in
pursuit of a vessel capable of being seen from the ' Wasp,' although
then invisible from the ' Felicidade.' S. accordingly steered that course,
and the next morning he descried the ' Echo,' a Brazilian brigantine.
He chased and overtook the ' Echo ' the next night within ten miles of
the African coast, when and where she surrendered. S. had at that
time under his command Palmer, a midshipman, and sixteen British
seamen ; he ordered P. and eight of the seamen to take charge of the
' Echo ' during the night. On Mr. Palmer going on board the ' Echo,'
he found in her a cargo of four hundred and thirty-four slaves. During
the chase and at the time of the surrender, S. wore his uniform, and at
the time of the surrender and capture told Serva, the captain of the
' Echo,' he was going to take them to Her Majesty's ship the ' Wasp,' for
being engaged in the slave trade. The ' Wasp ' had printed instructions
on board. S. had not any printed instructions on board the ' Felicidade,'
and did not shew any other authority than his uniform and the British
ensign. He had, however, boarded the ' Echo ' several times before,
and to Serva was well known as an officer in Her Majesty's navy. The
next morning after the capture S. placed P. and nine British seamen
under his command on board the ' Felicidade,' in order that he might take
charge of her and of Serva, M. (another of the crew of the ' Felicidade '),
and several others of the ' Echo's ' crew. Within an hour afterwards

(o) Ss. 41-46, 48-82 were repealed in for condemnation or forfeiture of slaves

1873 (36 & 37 Vict. o. 88, s. 30). S. 47 illegally imported, for which there is no

fixes a limitation of five years for indict- time Hmit. This section appears not to

ments, information, &o., to recover penalties apply to offences within ss. 9, 10, 11.
or forfeitures, except in case of proceedings

276 Of Offences Relating to the Law of Nations, [book ii.

Serva, M., and some of the rest conspired together to kill all the English
on board the ' Felicidade,' and take her ; and in pursuance of that con-
spiracy rose upon P. and his men, and after a short conflict succeeded
in killing them, M. having in the course of that conflict stabbed and thrown
overboard P. On the trial of an indictment against Serva and others
engaged with him in the transaction for the murder of Mr. Palmer, at
Exeter Assizes, Piatt, B., held that the ' Felicidade ' was in the lawful
custody of Her Majesty's officers, that all on board that vessel were
within Her Majesty's Admiralty jurisdiction, and that if the prisoners
plotted together to slay all the English on board and run away with the
vessel, and in carrying their design into execution M. slew P., and the
others were aiding and assisting in the commission of that act, they should
be found guilty of murder ; and upon a case reserved it was contended
on the part of the prisoners that both the ' Felicidade ' and ' Echo ' were
wrongfully taken, and that the prisoners had a right to regain their
freedom by any means in their power, and consequently that no felony
had been committed. It was answered on the part of the prosecution,
that the ' Felicidade ' and ' Echo ' were lawfully taken under the Slave
Trade Act, 1824 (5 Geo. IV. c. 113), and 7 & 8 Geo. IV. c. 74 (p), and
the Portuguese and Brazilian treaties as to slave trading; and that the
prisoners were in lawful custody, and the ' Felicidade ' in the lawful
custody of the Queen's officers ; but it was held that there was a want
of jurisdiction in an EngHsh Court to try the murder committed on board
the ' Felicidade ' ; and if the lawful possession of that vessel by the
British Crown, through its officers, would be sufficient to give jurisdic-
tion, there was no evidence brought before the Court to shew that the
possession was lawful {q).

A count stated that the prisoner, within the jurisdiction of the Central
Criminal Court, did illegally and feloniously man, navigate, equip, despatch,
use and employ a certain ship called the ' Augusta,' in order to accom-
pUsh a certain object, which (by 5 Geo. IV. c. 113, s. 10) was declared
unlawful, viz., to deal and trade in slaves. The three following counts
only varied from the first in describing the object of the several acts
charged to have been done by the prisoner differently, as in the statute.
It was objected that each count was bad as charging distinct felonies,
the statute making it a felony to fit out, man, navigate, equip, despatch,
use or employ any ship in order to accomplish any of the objects thereby
declared unlawful, and each count charging the prisoner with having done
all the acts before mentioned, each of which would have been of itself a
felony, if done with the object stated in the Act. But the Court held
that each count contained a charge of one felony only, the whole being
alleged to have been done to accomplish one and the same single object,
the essence of the -felony consisting in using the means described in the
Act to accomplish that object. It was also contended, that these counts
were bad for not negativing the exceptions in the Act of circumstances,
which might render the transaction lawful ; but it was held that these

(p) Which gave municipal effect to a {g) R. v. Serva, 2 C. & K. 53 ; 1 Den. 104,

Slave Trade Convention with Brazil. The Denman, C.J., and Piatt, B., diss. See also

Act was repealed in 1873 (30 & 37 Vict. c. the Li£e of Alderson B p 99:
88, s. 30).

CHAP. II.] Dealing in Slaves. 277

exceptions were virtually repealed by 3 & 4 Will. IV. e. 73, s. 12, and
that for this purpose sect. 10 of the Act of 1824 must be considered as
if they had never existed ; and as the offences in the indictment were
charged to have been committed in the reign of Queen Victoria, they
must necessarily have been after the passing of the repeahng Act. It
was further objected, that the indictment did not allege that the prisoner
was a British subject, or that the offence was committed within Her
Majesty's dominions ; but it was held that, as the offence was stated
in each count to have been committed at London, within the jurisdic-
tion of the Central Criminal Court, and therefore frima facie at least
within the Central Criminal Court district (r), the indictment did in sub-
stance allege the offence to have been committed within Her Majesty's
dominions (s).

Upon an indictment under sect. 10 for feloniously fitting out a vessel
for the purpose of deaUng in slaves, it was held that the provisions of the
Act were not confined to acts done by British subjects in furtherance of
the slave trade in England or the British colonies, but applied to acts
done by British subjects in furtherance of that trade in places not part
of the British dominions. And in order to convict a party who is charged
with having employed and loaded a vessel for the purpose of slave trading,
it is not necessary to shew that the vessel which carried out the goods
was intended to be used for bringing back slaves in return ; but it was
sufficient if there was a slave adventure, and the vessel was in any way
engaged in that adventure (i).

Where a party residing in London was charged with having chartered
a vessel and loaded goods on board, for the purpose of slave trading, it
was held that slave trading papers found on board the vessel when she
was seized off the coast of Africa, but not traced in any way to the know-
ledge of the prisoner, were not admissible in evidence against him(M).

The Slave Trade Act, 1843 (6 & 7 Vict. c. 98), recites sect. 2 of the
Act of 1824 (v), and enacts (sect. 1) that ' all the provisions of the
Slave Trade Act, 1824, hereinbefore recited and of this present Act shall
from and after the coming into operation of this Act (August 24, 1823),
be deemed to extend and apply to British subjects wheresoever residing
or being, and whether ivithin the dominions of the British Crown or of any
foreign country ; and all the several matters and things prohibited by
the Slave Trade Act, 1824, or by this present Act when committed by
British subjects, whether within the dominions of the British Crown
or in any foreign country, . . . (w) shall be deemed and taken to
be offences committed against the said several Acts respectively, and
shall be dealt with and punished accordingly : provided nevertheless,
that nothing herein contained shall repeal or alter any of the provisions
of the said Act' {x).

(r) See 4 & 5 Will. IV. c. 36, s. 2, ante, (v) Vide ante, p. 271.

p. 267n. (w) The words omitted and ss. 5, 6

(«) B. V. Jennings, 1 Cox, 115, Wight- were repealed in 1891 (S. L. E.).

man and Cresswell, JJ. (x) S. 2, which abolished servitude for

(t) R. V. Zulueta, 1 C. & K. 215, Maule debt of persons called pawns or peons was

and Wightman, JJ. But see Santos v. repealed in 1891 (S. L. B.). S. 3 was re-

Iffidge, 28 L. J. C.P. 317, 321^ post, p. 278. pealed in 1873 (36 & 37 Vict. c. 88, s. 30).

(u) Ibid. As to peonage, see American legislation.

278 Of Offences Relating to the Law of Nations, [book ii.

Sect. 4. ' In all cases of indictment or information laid or exhibited in
the Court of Queen's Bench (High Court of Justice King's Bench Division)
for misdemeanors or ofiences committed against the said Acts (of 1824
and 1833, mite, pp. 271 et seq.), or against the present Act in any places
out of the United Kingdom, and within any British colony, settlement,
plantation, or territory it shall and may be lawful for Her Majesty's said
Court, upon motion to be made on behalf of the prosecutor or defendant,
to award a writ or writs of mandamus, requiring the chief justice or
other chief judicial officer in such colony, settlement, plantation, or
territory, who are hereby authorised and required accordingly, to hold
a Court, with all convenient speed for the examination of witnesses and
receiving other proofs concerning the matters charged in such indictments
or informations respectively, and in the meantime to cause pubhc notice
to be given of the holding of such Courts, and summonses to be issued
for the attendance of witnesses and of agents and counsel of the parties ;
and such examination as aforesaid shall be then and there openly and
publicly taken in the said Court viva voce upon the respective oaths
of the persons examined, and be reduced to writing and be sent to Her
Majesty in Her Court of Queen's Bench, in manner set forth and pre-
scribed in the East India Company Act, 1772 (13 Geo. III. c. 63) ; and
such depositions being duly taken and returned according to the true
intent and meaning of this Act, shall be allowed and read, and shall be
deemed as good and competent evidence as if such witnesses had been
present and sworn and examined viva voce at any trial for such mis-
demeanors and offences as aforesaid in Her Majesty's said Court of Queen's
Bench, any law or usage to the contrary thereof notwithstanding ' (y).

There is nothing in the Acts of 1824 and 1833 to prohibit a contract
by a British subject for the sale of slaves lawfully held by him in a
foreign country, where the possession and the sale of slaves is legal.
Where, therefore the defendants, British subjects, resident and domiciled
in Great Britain, being possessed of certain slaves in the Brazils, where
the purchase and holding of slaves is lawful, contracted with the plain-
tiff, a Brazilian subject, domiciled in the Brazils, to sell them to him,
to be used and employed there, and some of the slaves had been pur-
chased by the defendants in the Brazils after the passing of the Act of
1824, but before the Act of 1843 (z), for the purpose of being employed,
and they were employed, in certain mines there, of which the defendants
were the proprietors ; and the rest of the slaves were their offspring,
and were in the possession of the defendants before the passing of the
latter Act ; it was held that the contract was valid (a).

The Slave Trade Act, 1873 (36 & 37 Vict. c. 88), consolidates the
laws for the suppression of the slave trade, and incorporates the unre-
pealed provisions of the Slave Trade Act, 1824 (already stated).

By sect. 2, ' In this Act the term " vessel " means any vessel used in
navigation. The term " British possession " means any plantation,
territory, settlement, or place situate within His Majesty's dominions,

(?/) See post. Vol. ii. p. 2249, ' Evidence.' (z) See s. 1 of that Act, supra.

Ss. 5, 6 were repealed in 1891 (54 &55 Vict. {a) Santos v. IlUdge, 8 C. B (N S ) 861

c. 67, S.L.R),ands.7inl874(37&38Vict. (Ex.) : 28 L. J. C.P. 313.
.;. 90, S. L. R.).

CHAP. II.] Dealing in Slaves. 279

and not forming part of the United Kingdom. The term " Governor "
includes the officer for the time being administering the government of
any colony, and where there is a local governor or lieutenant-governor
under a governor-general, means the local governor or lieutenant-
governor : The term "foreign state " includes any foreign nation, people,
tribe, sovereign, prince, chief, or headman : The term " vessel of a foreign
state " means a vessel which is justly entitled to claim the protection
of the flag of a foreign state, or which would be so entitled if she did
not lose such protection by being engaged in the slave trade : The term
" treaty " includes any convention, agreement, engagement, or arrange-
ment : The term " slave trade," when used in relation to any particular
treaty, does not include anything declared by such treaty not to be com-
prised in the term or in such treaty : The term " Vice- Admiralty Court "
does not include any Vice-Admiralty Court which for the time being
has under its commission a limited jurisdiction only in matters relating
to the slave trade : The term " British Slave Court " means the High
Court of Admiralty of England, every Vice- Admiralty Court in [His]
Majesty's dominions out of the United Kingdom, and every East African
Court for the time being within the meaning of the Slave Trade (Bast
African Courts) Act, 1873 (36 & 37 Vict. c. 59) : The term "Slave Court"
means every British Slave Court, every mixed commission or Court
established under any existing slave trade treaty, and the Court of any
foreign state having jurisdiction to try and condemn a vessel engaged in
the slave trade : The term " existing slave trade treaty " means a treaty
made by or on behalf of [His] Majesty or his royal predecessors with any
foreign state for the more effectual suppression of the slave trade and in
force at the passing of this Act.'

Sect. 3 provides for the seizure of ships suspected (6) of being engaged
in or fitted out for the slave trade, and for the seizure of vessels, slaves,
persons, goods, and effects which may be forfeited under the above pro-
visions. Sect. 4 and Schedule 1 provide for presumption that a vessel
is engaged in the slave trade from the presence of certain specified par-
ticulars in its equipment. But the presumption does not extend to vessels
of a foreign state, except so far as is consistent with the treaty made with
such state. Sects. 5-8 provide the tribunal which is to try the right of
seizure. Sects. 9 and 10 provide for the disposal of vessels and slaves
which have been seized. Sects. 11-16 relate to bounties (c). By sect. 17
persons authorised to make seizures are to have the benefit of the pro-
tection granted to persons acting under the Imperial Customs Acts.
By sect. 18 the pendency of proceedings under the Act in certain cases
is made a bar to other legal proceedings. Sect. 19-21 apply to pro-
ceedings in the High Court of Justice in England (Admiralty Division)
with respect to costs {d).

(h) Ab to reasonable suspicion see R. v. Admiralty Act, 1890, in the possession, and

Casaca, 5 App. Cas. 48. as to Courts out of the King's dominion as

(c) See also the Naval Prize Act, 1864 from the commencement of an order apply-
(27 & 28 Vict. u. 24), ss. 12-18. ing the Act of 1890 to the Court (53 & 54

(d) 8. 20 is repealed as to costs which can Vict. c. 27, s. 18). See Index to Statutory
be taxed in a British possession, as from Rules and Orders (ed. 1907), tit. ' Foreign
the commencement of the Colonial Courts of Jurisdiction,'

280 Of Offences Relating to the Law of Nations, [book ii.

By sect. 22, ' Any person who wilfully gives false evidence in any pro-
ceeding taken in pursuance of this Act in any Slave Court shall be guilty
of an offence against this Act, and shall be liable to the like penalty as
if he had been guilty of perjury, or in a British possession, of the offence,
by whatever name called which if committed in England would be
perjury.'

By sect. 23 the registrar of a British Slave Court is to make returns
of cases adjudged in such Court (e).

By sect. 24, ' This Act shall be construed as one with the enactments
of the Slave Trade Act, 1824 (/), and any enactments amending the
same (gr), so far as they are in force at the time of the passing of this Act,
and are not repealed by this Act ; and the expression " this Act,"
when used in this Act, shall include those enactments.'

By sect. 25, ' All pecuniary forfeitures and penalties imposed by the
said enactments, with which this Act is to be construed as one, may
be sued for, prosecuted, and recovered in any Court of record or of Vice-
Admiralty in any part of His Majesty's dominions wherein the offence
was committed, or where the offender may be, in like manner as any
penalty or forfeiture incurred in the United Kingdom, under any Act
for the time being in force relating to His Majesty's customs, or (in the
case of the High Court of Admiralty, or of a Court of Vice- Admiralty),
in like manner as any vessel seized in pursuance of this Act. Such
pecuniary penalties and forfeitures shall, subject to the express pro-
visions of the said enactments, be paid and applied in like manner as the
net proceeds of a vessel seized otherwise than by the commander or
officer of one of His Majesty's ships, or of the cruiser of a foreign state.'

Trial of Offences against the Act. — By sect. 26, ' Any offence against
this Act, or the said enactments with which this Act is to be construed
aS one, or otherwise in connection with the slave trade, shall for all
purposes of and incidental to the trial and punishment of a person guilty
of such offence, and all proceedings and matters preliminary and incidental
to and consequential on such trial and punishment, and for all purposes
of and incidental to the jurisdiction of any Court, constable, and officer
with reference to such offence, be deemed to have been committed,
either in the place in which the offence was committed or in the county
of Middlesex, or in any place in which the person guilty of the offence
may for the time being be, either in His Majesty's dominions, or in any
foreign port or place in which His Majesty has jurisdiction ; and the
offence may be described in any indictment or other document relating
thereto, as having being committed at the place where it was wholly
or partly committed, or as having been committed on the high seas,
or out of His Majesty's dominions, and the venue or local description
in the margin may be that of the place in which the trial is held.

' Where any such offence is commenced at one place and completed

at another, the place at which such offence is to be deemed to have

been committed shall be either the place where the offence was commenced

or the place where the offence was completed.

regulations have yet been made as to re- (y) i.e. the Acts of 1833 and 1843, sufra.

turns by such registrars.

CHAP. 11.] Dealing in Slaves. 281

' Where a person being in one place is accessory to or aids or abets
in any such offence committed in another place, the place at which such
offence is to be deemed to have been committed shall be either the place
in which the offence was' actually committed or the place where the
offender was at the time of his being so accessory aiding or abetting.

'Where it appears to any Court, or the judge of any Court having
jurisdiction to try any such offence, that the removal of an offender
charged with such offence to some other place in His Majesty's dominions
for trial would be conducive to the interest of justice, such Court or
judge may, by warrant or instrument in the nature of a warrant, direct
such removal, and such offender may be removed and tried accordingly.
And sect. 268 of the Merchant Shipping Act, 1854 (k), shall apply to the
removal of an offender under this section in the same mannner as if the
term "consular officer" (i), in that section included the Court or judge
making such warrant or instrument.'

By sect. 27, offences against the Act or the incorporated enactments,
or otherwise in connection with the slave trade, whether committed
on the high seas or on land, or partly on the high seas and partly on land
are to be deemed to be included as extradition crimes in the first schedule
of the Extradition Act, 1870 (33 & 34 Vict. c. -52), and that Act and
any Act amending it are to be construed accordingly.

By sect. 28 the Act is applied to all cases of vessels, slaves, goods, and
effects seized and adjudicated upon by any Slave Court, whether before
or after the passing of the Act (j). Sect. 29 extends the Act to future
treaties with any foreign state in relation to the slave trade if an Order
in Council be obtained for that purpose (k).

The Slave Trade (East vyrican Courts) Act, 1873 (l) (36 & 37 Vict. c. 59),

(h) i.e. 17 & 18 Viot. u. 104, s. 268, re- General, C!onsul, Vice-Consul, Consular

pealed in 1894 and replaced by s. 689 of the Agent, or any person for the time being

Merchant Shipping Act, 1894 (57 & 58 Vict. authorised to discharge the duties of Consul

c. 60), which combines s. 268 with 45 & 46 General or Vice- Consul. 52 & 53 Vict. c. 63,

Vict. c. 55, s. 9. The effect of the repeal is b. 12 (20).

to substitute the new for the former enact- {j) A similar provision is made by 36 &

ment. See 52 & 53 Vict. o. 63, s. 38, ante, 37 Vict. c. 59, s. 7, and that enactment is by

p. 5. 42 & 43 Viot. c. 38, s. 3, extended to treaties

(i) i.e. ' British Consular of&oer ' (57 & with the Government of Egypt.
58 Vict. 0. 60, s. 689), including Consul

{k) The Orders in Council in force are as follows : — •

Date of Order in Council. Treaty to which Act applied.

May 9, 1892 . . . Brussels General Act of July 2, 1890.

Sept. 9, 1884 . . Abyssinia Treaty of June 3, 1884.

Dec. 30, 1878 . . . Egypt „ ., Aug. 4, 1877._

June 28, 1880 . . . Germany

Aprn 3, 1886 | j. ,

Nov. 28, 1889 ) • ' "^'^^

Nov. 6, 1883 . . Johanna

Nov. 6, 1883 . . . MohiUa

Aug. 18, 1882 . . . Persia

May 9, 1892 . Spain

Aug. 26, 1881 1 ^ ^

Aug. 23, 1883 3 • ■ ^^^^^^

(l) This Act applies retrospectively to tection of the flag of any foreign state : and
cases already adjudicated (s. 6). S. 3 gives in the case of a British vessel, whether it
jurisdictionwherethevessel seized is British is brought in by a British ship or by the
or is seized under an existing treaty or is commander of a foreign state party to the
not shewn to be entitled to claim the pro- treaty (42 & 43 Vict. c. 38, ». 4).

March 29, 1879.
( Dec. 21, 1885.
I Sept. 14, 1889.

Oct. 10, 1882.

Oct. 24, 1882.

March 2, 1882.

July 2, 1890.
f Jan. 25, 1880.
I March 3, 1883.

282 Of Offences Relating to the Law of Nations, [book ii.

as amended by the Slave Trade (East African Courts) Act, 1879 (42 &
43 Vict. 0. 38), regulates and extends the jurisdiction in matters con-
nected with the slave trade of the Vice- Admiralty Court at Aden, and of
His Majesty's consular officers within the dominions of the sovereigns
of Zanzibar (m), Muscat (w), and Madagascar (o), upon whom jurisdiction
had been, or should be, conferred by Order in Council in relation to
vessels captured on suspicion of being engaged in the slave trade or
otherwise in relation to that trade. The Acts apply to existing and
future treaties with the powers named or with Egjrpt (p), or any other
foreign nation, people, tribe, sovereign, prince, chief, or headman in
Arabia or East Africa, or the coasts of the Persian Gulf (sect. 7).

By the Slave Trade Act, 1876 (39 & 40 Vict. c. 46), s. 1, it is pro-
vided that a subject of the King, or of any Prince or State in India
in alliance with the King, may be dealt with and punished in any place
in British India where he is found for committing or abetting
offences against sects. 367, 370, 371 of the Indian Penal Code (Act XLV.
of 1860) {q), or any subseqi;ent amendment of these sections (r), com-
mitted upon the high seas or in any part of Asia or Africa, specified
in the Order in Council. By sect. 3, High Courts in India are given, for
the purpose of obtaining evidence for the trial of such cases, the powers
given to the Court of Queen's Bench by sect. 4 of the Slave Trade Act,
1843 (s) as to British possessions where a witness may be, and as to
consular officers in the specified parts of Asia or Africa the powers
given by sect. 330 of the Indian Criminal Procedure Code, Act X. of
1872 {t).

By Order in Council of April 30, 1877 {u), the above Act was applied
to certain portions of Asia and Africa, viz., the territories of the Khan of
Khelat, and of the Sultan of Muscat in Mekran and Tkabia, the coasts
of Beloochistan, and of the Bunder Abbas district, and the shores of
the Persian Gulf, the coast of Arabia from Ras Mussendom to Cape Bab
el Mandeb, the territories of certain specified tribes near Aden, the coast
of Africa from Ras Sejarme to Delagoa Bay, the territories of the Sultan
of Zanzibar, and the sea and islands within 10 degrees of latitude or
longitude from such coasts and shores respectively (?;).

By the Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict. c. 27), s. 2,
subs. 3 (6), a Colonial Court of Admiralty has under the Slave Trade Act,
1873, and any enactment relating to the slave trade (w) the jurisdiction

(ra) Now a British Protectorate. See (() Superseded and replaced by s. 503 of

Zanzibar Orders in Council, 1906, May 11 the Indian Criminal Procedure Code of
and Dec. 21. Stat. K & 0. 1906, pp. 193, 1898.

21f ■ , ^ , . {«) Printed in St. R. & 0. Revised (ed.

(n) For the treaties see 0 Hertslet, 578, 7 1904), vol. xi. tit. ' Slave Trade ' 84
do. 818, 9 do. 577, 18 do. 927 ; and sec (v) Ss. 4 & 6 of the Act of 1876 were

Muscat Order m Council, Nov. 4, 1867. St. repealed in 1890 (53 & 54 Vict. c. 37 s 18)

R & 0. Revised (ed 1904), vol. v. tit. and s. 4 re-enacted as s. 17 of that Act.
Foreign Jurisdiction („) As to making rules as to practice,

(o) Now part of the dominions of the procedure, costs and returns, and appeals,

f^ .ofP^oi'.--. „„ „ in slave-trade matters in the East African

p) 42 & 43 Vict. c. 38, s. 3. Courts see s. 13 (1), (3), and other Courts of

{q) Mayne, Ind. Cr. L. (ed. 1896). Admiralty or Vice-Admiralty, s. 13 (2). For

(r) If applied by Order in Council, subject reference to the rules made see Index to

to a veto by Parliament, s, 2. Statutory Rules and Orders (ed. 1907), pp.

\s) Ante, p. 278. 100, 101.

CHAP. II.] Dealing in Slaves. 283

thereby conferred in a Vice-Admiralty Court, but by subs. 3 bas not
jurisdiction under the Act of 1890 to try or punish a person for an offence
which, according to the law of England, is punishable on indictment.
The Act may be applied by Order in Council to Courts under the Foreign
Jurisdiction Act, 1890 (53 & 54 Vict. c. 37) (x).

The criminal jurisdiction of Colonial Courts with reference to the
slave trade offences arising outside the land and sea limits of the
Colony depends on the Acts of 1824 and 1873, swpra.

The Act of 1890, c. 27, s. 9, authorises the King by commission under
the Great Seal to establish Vice- Admiralty Courts (y) in any British posses-
sion. In British India and Colonies having a representative legislature,
the Courts thus created may not exercise jurisdiction, except for certain
purposes relating to prize, the royal navy, the slave trade, to the Pacific
Islanders Protection Acts, 1872 and 1875, the Foreign Enlistment Act,
1870, or to matters on which questions arise relating to treaties or
conventions with foreign countries, or to international law.

Sect. II. — The Pacific Islanders Protection Acts.

By sect. 9 of the Pacific Islanders Protection Act, 1872 (z) (sometimes
described as the Kidnapping Act), certain offences by British subjects
in the nature of kidnapping or enslaving ' natives of islands in the
Pacific Ocean, not being within the King's dominions nor within the
jurisdiction of any civilised power,' are declared felony. The Supreme
Courts of the Australian States (a) and the Dominion of New Zealand,
and Fiji (b) are empowered to try the offences and to inflict, at the
discretion of the Court, the highest punishment short of death, or any
less punishment for felony awarded by the law of the colony where the
trial takes place. Persons who aid, abet, counsel, or procure the commis-
sion of such offences may be tried and punished as principal offenders
(sect. 10). In indictments for such offences the offence may be described
as committed at the place where it was wholly or partly committed, or
may be averred generally as committed within the King's dominions,
and the venue or local description in the margin of the indictment may be
that of the place where the trial is held (sect. 11) (c).

The Act contained provisions (sects. 3-5) as to licences authorising the
carrying of native labourers, amended in 1875 (38 & 39 Vict. c. 51, s. 2),
which are now ineffective so far as concerns Australia, by the stoppage of
Polynesian immigration.

(x) e.g. in Cyprus (1893), China and Courts of New Soutli Wales andjasmania

Corea (1904), Ottoman Empire (1905), under the Australian Courts Act, 1828

Persian Coast and Islands (1901), Siam (9 Geo. IV. c. 83).

(1906), Zanzibar (1906), Western Pacific (6) Added by the Act of 1875 (38 & 39

(1903). Vict. c. 51) s. 8.

iy) As to criminal jurisdiction of the (c) Ss. 12-15 deal with the obtaining of

Admiral or Vice-Admiral, vide ante, pp. 31, evidence. Ss. 16, 17 give power to seize

267. suspected British vessels. The vessels can

(z) 35 & 36 Vict. c. 19. See 2 Steph. be adjudicated upon by the Admiralty

Hist. Cr. L. 58, and Quick & Garran, Aus- Courts in England or Colonial Vioe-

tralian Commonwealth Constitution, p. 637. Admiralty Courts (38 & 39 Vict. c. 51,

(a) By s. 22. This power does not affect ss. 4, 5 ; 53 & 54 Vict. c. 27, o. 9).
the jurisdiction vested in the Supreme

284 Of Offences Relating to the Law of Nations, [book ii.

The Pacific Islanders Protection Act, 1875 (38 & SQVict. c. 51),
authorises His Majesty to exercise jurisdiction over British subjects
in islands and places in the Pacific Ocean not within the King's dominions,
and by Order in Council to create a Court of justice with criminal juris-
diction over British subjects within such islands and places, with power
to take cognisance of all crimes and offences committed by British sub-
jects ' within any of the said islands and places, or in any haven, river,
creek, or place within the jurisdiction of the Admiralty ' (sect. 6) {d) . . .
and to vest such jurisdiction or any part thereof in a designated Court of
a British Colony, and provide for the transmission of such offenders to the
colony for trial and punishment, and for the admission in evidence of
depositions taken in such islands and places.

The Acts of 1872 and 1875 took effect in the Australasian Colonies on
proclamation by the Governors (35 & 36 Vict. c. 19, s. 21 (rep.) ; 38 & 39
Vict. c. 51, s. 10).

Under the above Acts and the British Settlements Act, 1887 (50 & 51
Vict. c. 54), and the Foreign Jurisdiction Act, 1890 (53 & 54 Vict. c. 37),
an Order in Council was made, March 15, 1893, by sect. 13 whereof
jurisdiction as to all matters and questions arising under the Pacific
Islanders Protection Acts, 1872 and 1875, is subject to the provisions
of the Order vested in and exercisable by the Court of the High Com-
missioner for the Western Pacific (e), which consists of the High Com-
missioner, the Chief Justices and other judges of the Supreme Court of
Fiji, and the deputy commissioners (/). The Order contains pro-
visions {g) as to procedure and jurisdiction, which include adaptations
of the Admiralty Offences Colonial Acts of 1849 and 1860 (h).

On an indictment tried in Queensland for an offence against sect. 9 of
the Act of 1872, the question arose whether the island of Malayta was
part of the dominions of the British Crown or within the jurisdiction of any
civilised power. The judge, on reference to the Pacific Order in Council
of 1893, decided that it was part of the law, and that it applied to Malayta
with other islands as not being within the jurisdiction or protectorate of
any civilised power {i). In the same case it was held that if the Crown
made a prima facie case of suspicion, the burden lay on the accused to
prove that the natives were taken from their islands with their own
consent.

[d] Admiralty jurisdiction might also be teotorates : Tonga or Friendly Islands,
conferred. But see 53 & 54 Vict. o. 27, ss. Union Group, Ellice and Gilbert Islands,
16, 18. and Southern Soloman's ; and (jointly with

(e) See the Pacific Orders in Council of France) the New Hebrides, including Banks
1893, 1897. 1903, and 2nd Nov. 1907, Islands and Torres Island-i.

and 26th Sep. 1908. St. R. & 0. Revised (/) Arts. 8, 112.

(ed. 1904), vol. v. tit. 'Foreign Juris- (?) Arts. 60-84.

diction.' St. R. & 0. Revised 1907, No. (h) Ante, p. 269.

864 : St. R. & 0. 1908 (No. 780). The (s) R. v. Vos [1896], 6 Queensland L. J.

orders embrace the following British pro- 215,

( 285 )

CHAPTER THE THIRD.

OF SERVING FOREIGN STATES AND BREACHES OE NEUTRALITY.

A. Common Law and Earlier Statutes.

According to the old authorities the King is entitled to call on all the
lieges to defend the realm and to prevent their. withdrawal from the
realm (a) ; and disobedience to the King's letter to a subject commanding
him to return from beyond the seas, or to the King's writ of we exeat regno,
commanding a subject to stay at home, is a high misprision and con-
tempt (b). And it is also a high offence to refuse to assist the King for the
good of the state, either in councils, by advice, if called upon, or in war
by personal service for the defence of the realm against rebeUion or
invasion (c) ; and all persons under the degree of nobility who are fifteen
years of age and able to travel are liable to punishment for neglecting to
join the posse comitatus {d).

Entering into the service of a foreign state without the consent of
the King, or contracting with a foreign state any engagement which sub-
jects the party to an influence or control inconsistent with the allegiance
due to our own sovereign, is said to be a misdemeanor indictable at
common law (e), and where the foreign state is at war with Great
Britain is treason (/). Indeed it is considered as so high an offence
to prefer the interests of a foreign state to that of our own, that any
act is said to be criminal which may but incline a man to do so ; as to
receive a pension from a foreign prince without the leave of the King (g).

Early Statutes.

By an Act of 1605 (3 Jac. I. c. 4, s. 18) (h), it was made felony to go
out of the realm to serve foreign states without first taking the oath of
allegiance and entering into a bond against reconcihation with the Pope
or plots against the King. The oath prescribed by the Act of 1605 was

(a) The King may command under his Car. I. o. 28. See case of soldiers, 6 Co.

privy seal or privy signet, that one go not Rep. 27a.

out of the realm as appeareth by F. N. B. (d) Neglect to join the posse comitatus,

85. Lane's case [1587], 2 Co. Rep. 16, 17b. if required by the sheriffs or the justices, is

Earl of Devonshire's case, 11 Co. Rep. 92a. a misdemeanor. 2 Hen. V. stat. 1, c. 8.

(6) 1 East, P. C. 81 ; 4 Bl. Com. 122 ; And as to arrest of felons, see 50 & 51 Vict.

Beames, Ne Exeat. And if the subject c. 55, s. 8 (1). The posse comitatus is now

neglects to return from beyond the seas, summoned, if at aU, only for the arrest of

when commanded, his land shall be seized felons or suppression of riots {post, p. 431.
tiU he does return, 1 Hawk. c. 22, s. 4. (e) 1 East, P. C. 81 ; 4 BI. Com. 122.

Military Law, c. ix. The power did not (g) 3 Co. Inst. 144 ; 1 Hawk. u. 22, ». 3 ;

extend to compel a man to leave the realm 4 Bl. Com. 121.

on military service. Imprisonment for {h) Repealed in 1846 (9 & 10 Vict. e. 59).

this purpose was declared illegal by 16

286 Of Offences Relating to the Law of Nations, [book ii.

modified in 1688 (1 Will. & M. st. 1, c. 8). Under tlie Act of 1605 it was
considered, that if a party went out of the realm with intent to serve a
foreign state, although there was no service in fact ; or if a party did
actually so serve, though he did not go over for that purpose, but upon
some other occasion, it was within the statute [i).

By Acts of 1736 (9 Geo. II. c. 30), and 1756 (29 Geo. II. c. 17), it was
made felony without benefit of clergy to enlist, or procure any person to
go abroad to enlist, as a soldier in the service of any foreign prince, state,
or potentate. These Acts were directed against the enlistment by foreign
powers of Catholics or Jacobites (^').

Of Breaches of Neutrality.

It appears not to have been an offence at common law for British
subjects to enter into the service of belligerent powers at peace with
Great Britain, unless the act involved a breach of duty to the King {j).

In the United States legislation was passed in 1794 and 1818 to
prevent aid by American citizens to foreign belHgerents.

Act of 1819. — In 1819 was passed an Act (59 Geo. III. c. 69) framed on
the United States Act of 1818. The preamble recites that, ' The enUst-
mentor engagement of His Majesty's subjects to serve in war in foreign
service, without His Majesty's licence, and the fitting out or arming of
vessels by His Majesty's subjects, without His Majesty's licence, for
warlike operations in or against the dominions of any Foreign Prince,
State, potentate, or persons exercising or assuming to exercise the powers
of Government in or over any Foreign Country, Colony, Province, or part of
any Province {k), or against the ships, goods, or merchandise of any Foreign
Prince, potentate, or persons as aforesaid, or their subjects, may be pre-
judicial to and tend to endanger the peace and welfare of this Kingdom ' ;
and that ' the laws in force are not sufficiently effectual for preventing
the same.'

In R. V. Jones If), on an indictment (under 59 Geo. III. c. 69), for engag-
ing and procuring at Liverpool men to enlist as sailors in the Confederate
service, it appeared that the men had been induced by the defendants
to sign articles at Liverpool to serve in the ' Japan ' on a voyage to China,
and they embarked on board her, and she sailed to the British Channel,
and anchored off Brest, and the next day a captain of the Confederate
navy enlisted the men in that service. Cockburn, C.J., held that the
question was, whether the defendants procured the sailors to embark at
Liverpool for the purpose of their being employed in the service of the
Confederate States. If they procured the sailors to embark on board
the ' Japan ' and sail to a foreign country, to be there enlisted in the
Confederate service, they were guilty, and it was sufficient if that was the
intention of the defendants, although the men themselves did not go
with that intention.

(i) 3 Co. Inst. 80 ; 1 East, P. C. 82. Of. from engaging in the revolt of the Spanish

the repealed Irish Acts, 11 Geo. II. c. 7, 19 American colonies. The words in italics

Geo. II. c. 7. See 2 Stephen Hist. Cr. L. 257, were clearly intended to have this effect,

where the early statutes are collected. See 40 Pari. Deb. {1st series), 1084, 1091.

(j) Vide supra, p. 285. . The 'Salvador' [1870], L. R. 3 P.O. 218,

(k) The first effect, if not the object, of 231.

this Act was to prevent British subjects [1) 4 F. & F. 25.

Char III.] S&rving foreign States. 287

In E. V. Rumble (m), the indictment (under 59 Geo. III. c. 69) con-
tained counts for causing, &c., men to enlist in the Confederate service as
sailors, &c., and for counselling men here to enlist in that service abroad,
and for assisting the equipment of a vessel for that service. An old iron
steam gunboat dismantled of all her guns and warlike equipments, and
stripped of her armour-plates, masts, spars, and sails, and with only her
engines and boilers in her, was sold by the Government to a firm, who
bought her with a view to her being engaged in the Confederate service.
Leave was obtained from the Admiralty to have the vessel docked and
repaired at Sheerness, and the defendant, who was one of the dockyard
officials, had rendered every assistance. There were no warhke equipments
done, but mere repairs or fittings as a mercantile vessel. The defendant
had held himself out as engaging men on board the vessel for a trial trip
previously to her going on a voyage to China, and had engaged men, or
sent them on board to be engaged, as stokers, firemen, or engineers ; but
none of the men had any other idea than that the vessel was destined for
China. The vessel went to Calais, and there the Confederate flag was
hoisted, and officers came on board and took the command of her as a
Confederate vessel, and the men were invited to enlist in the Confederate
service, but most of them declined. The defendant was on board whilst
the Confederate flag was flying, in company with the officers, and when
he came back to Sheerness he continued to interest himself in sending
men over for the service of the vessel, though only in connection with
the locomotive power. The jury were directed — 1. That the main
question was, whether the defendant was a party to the engagement
of the men with a view to enlistment in the Confederate service. 2. That
the acts of the defendant after he must have been aware of the destination
of the vessel, though not the subject-matter of the indictment, might be
taken into consideration as throwing light upon the intention with which
he did the acts in the earher part of the transaction, which were the
subject-matter of the indictment. 3. That the trifling repairs done to
the engines, &c., did not amount to an equipment. 4. That if the
defendant procured the men to enter into engagements nominally for a
trial trip, but with the ulterior purpose on his part of getting them into a
position in which they might be induced to enlist in the Confederate
service, the defendant was guilty, but if his object in engaging the men
was simply that the vessel should go out on a trial trip and come back, he
was not guilty. 5. That the term ' sailors ' in the statute included
persons engaged as stokers, firemen, and engineers, for the purpose of
navigating the vessel. 6. That there must be a hiring or enlistment in
the United Kingdom to bring the case within the statute. 7. That such
an offence must have been committed in England, or the offence of
counselling its commission was not proved (n).

The building in pursuance of a contract, with intention to sell and
deliver to a belligerent power, the hull of a vessel suitable for war, but
unarmed and not equipped, or fitted out with anything which enables
her to cruise or commit hostilities, or do any warlike act whatever, was
not a violation of 59 Geo. III. c 69. The equipment forbidden by that

(m) 4 F. & P. 175. (to) See R. u. Corbett, 4 F. & F. 555.

288 Of Offences Relating to the Law of Nations, [book ii.

Act was an equipment of such warlike character as enables a ship on
leaving a port of this kingdom to cruise or commit hostilities. (Per Pollock,
C.B., and Bramwell, B.) If the character of equipment is doubtful,
it may be explained by evidence of the intent of the parties. The Act
includes a case where the equipment is such that, although the ship when
it leaves a port in this kingdom is not in a condition at once to commit
hostihties, it is yet capable of being used for war, and the intent is clear
that it is to be used for war. (Per Channell, B.) Any act of equipping,
furnishing, or fitting out done to the hull or vessel, of whatever nature or
character that act may be if done with the prohibited intent, is within,
the statute. (Per Pigott, B.) On the trial of an information respecting
the seizure of a vessel in a port at Liverpool for an alleged violation of
the Act for equipping her for the service of a belligerent state, Bramwell,
B., was of opinion, that a right direction would be, that if the jury were
satisfied that the parties concerned were equipping, or arming, or attempt-
ing to equip or arm, the ship claimed, with intent that it should be
employed in the service of a foreign power to cruise or commit hostilities
against others as alleged, they should find for the Crown ; but such equip-
ment or attempted equipment must be of a warlike character, so that
by means of it the ship was in a condition more or less effective to cruise
or commit hostilities ; otherwise they must find for the claimants. Chan-
nell, B., was of opinion that the questions left to the jury should have
been — 1. Was there an intent, on the part of any one having a controlling
power over the vessel, that she should be employed in the service of the
Confederate States, to cruise or commit hostilities against the United
States ? 2. If so, was she equipped, fitted out, or furnished in a British port
in order to be employed to cruise, &c. ? 3. If not equipped, was there
any attempt to equip her in a British port in order that she should be so
employed ? 4. Or did any one knowingly assist, &c., in such equipment
in a British port ? Pigott, B., said that the jury should have been directed
to see — 1. Whether the equippers or the purchasers had the prohibited
intent ; and, 2. Whether with such intent they had done any act towards
equipping, furnishing, or fitting out the ship, beyond the mere work of
building the hull of the vessel, or had attempted to do so (o).

B. The Foreign Enlistment Act, 1870.

In consequence of the defects in the Act of 1819, revealed by the
decision in Attorney-General v. Sillem {uhi sup.), and of the report of a
Koyal Commission in 1867 (p), that Act was repealed on the outbreak of the
Franco-German War in 1870, and was replaced by the Foreign Enlist-
ment Act, 1870 (33 & 34 Vict. c. 90) now in force. The preamble of
that Act recites ' that it is expedient to make provision for the regula-
tion of the conduct of His Majesty's subjects during the existence of
hostilities between foreign states with which His Majesty is at peace.'
The Act of 1870 extends to ' all the dominions of the King, including
the adjacent territorial waters ' (sect. 2) (.7), and has been held to apply

(0) A.-G. V. Sillem, 2 H. & C. 431 ; 33 (q) See Territorial Waters Jurisdiction

L. J. Ex. 92. Act, 1878 (41 & 42 Vict. c. 73), ante, p. 41.

t. (p) Pari. Pap. (1867-8) c. 4027.

CHAP. III.] Foreign Enlistment Act. 289

to British subjects everywhere, whether within the King's dominions or
not (r), and to foreign subjects within the King's dominions (s). It came
into operation in the United Kingdom immediately on its passing (August
9, 1870), 'and shall be proclaimed in every British possession by the
Governor thereof as soon as may be after he receives notice of this Act,
and shall come into operation in that British possession on the day of
such proclamation ' (sect. 3).

An indictment alleging that certain offences against the Act had
been committed within the limits of Her Majesty's dominions and after
the coming into operation of the Act, suf&ciently avers the Act to have
been in force in that part of Her Majesty's dominions in which the
ofiences were alleged to have been committed. But proof must be given
where necessary of proclamation in a British possession, e.(]., in one
acquired after August 9, 1870 {t).

Illegal Enlistment. — By sect. 4, ' if any person (m), without the
licence of His Majesty {v), being a British subject, within or without His
Majesty's dominions, accepts or agrees to accept any commission or
engagement in the military or naval service of any foreign state at war
with any foreign state at peace with His Majesty (to), and in this Act
referred to as a friendly state, or, whether a British subject or not, within
His Majesty's dominions, induces any other person to accept or agree to
accept any commission or engagement in the military or naval service
of any such foreign state as aforesaid—

' He shall be guilty of an offence against this Act, and shall be
punishable ' as stated fost, p. 292.

Sect. 5. ' If any person, without the licence of His Majesty, being
a British subject, quits or goes on board any ship with a view of quitting
His Majesty's dominions, with intent to accept any commission or engage-
ment in the military or naval service of any foreign state at war with
a friendly state, or, whether a British subject or not, within His Majesty's
dominions, induces any other person to quit or to go on board any ship
with a view of quitting His Majesty's dominions with the like intent,
he shall be guilty of an ofience against this Act, and shall be punishable '
as stated fost, p. 292.

Sect. 6. ' If any person induces any other person to quit His Majesty's
dominions or to embark on any ship within His Majesty's dominions
under a misrepresentation or false representation of the service in which
such person is to be engaged, with the intent or in order that such person
may accept or agree to accept any commission or engagement in the
military or naval service of any foreign state at war with a friendly state,
he shall be guilty of an offence against this Act, and shall be punishable '
as stated fost, p. 292.

Sect. 7. ' If the master or owner of any ship, without the licence of
His Majesty, knowingly either takes on board, or engages to take on

(r) R. W.Jameson [1896], 2 Q.B. 425, 430. under the Act of 1819. It is submitted

(«) B. V. Jameson, vbi sup. R. v. that corporations are within the Act of

Sandoval, 10 Cox, 206. 1870, vide ante, pp. 3, 102.

(t) R. V. Jameson, uhi sup. (f ) See s. 15, post, p. 293.

[u) It was held in King of Two Sicilies v. {vv) See Burton v, Pinkerton, L. R. 2

WiUcox, 1 Sim. (N. S.) 334, 19 L. J. Ch. 488, Ex. 340.
that a corporation could not be indicted

VOL. I. U

290 Of Offences Relating to the Law of Nations, [book ii,

board or has on board such ship within His Majesty's dominions any
of the following persons, in this Act referred to as illegally enlisted
persons ; that is to say —

(1) ' Any person who, being a British subject within or without the
dominions of His Majesty, has, without the licence of His Majesty,
accepted or agreed to accept any commission or engagement in the
military or naval service of any foreign state at war with any friendly
state ;

(2) ' Any person, being a British subject, who, without the licence
of His Majesty, is about to quit His Majesty's dominions with intent
to accept any commission or engagement in the military or naval service
of any foreign state at war with a friendly state ;

(3) ' Any person who has been induced to embark under a noisrepre-
sentation or false representation of the service in which such person is
to be engaged, with the intent or in order that such person may accept or
agree to accept any commission or engagement in the military or naval
service of any foreign state at war with a friendly state ;

' Such master or owner shall be guilty of an offence against this Act,
and the following consequences shall ensue ; that is to say,

(1) ' The offender shall be punishable ' as stated fost, p. 292.

(2) ' Such ship shall be detained until the trial and conviction or
acquittal of the master or owner, and until all penalties inflicted on
the master or owner have been paid, or the master or owner has given
security for the payment of such penalties to the satisfaction of two
justices of the peace, or other magistrate or magistrates having the
authority of two justices of the peace ; ' and

(3) ' All illegally enlisted persons shall immediately on the discovery
of the offence be taken on shore, and shall not be allowed to return to
the ship.'

Illegal Shipbuilding and Illegal Operations.— Sect. 8. ' If any person
within His Majesty's dominions, without the licence of His Majesty,
does any of the following acts ; that is to say —

(1) ' Builds or agrees to build, or causes to be built any ship with intent
or knowledge, or having reasonable cause to believe that the same shall
or wiU be employed in the military or naval service of any foreign state
at war with any friendly state : or

(2) ' Issues or delivers any commission for any ship with intent or
knowledge, or having reasonable cause to believe that the same shall or
will be employed in the military or naval service of any foreign state
at war with any friendly state : or

(3) ' Equips any ship with intent or knowledge, or having reason-
able cause to believe that the same shaU or will be employed in the military
or naval service of any foreign state at war with any friendly state : or

(4) ' Despatches, or causes or allows to be despatched, any ship with
intent or knowledge, or having reasonable cause to believe that the same
shall or will be employed in the military or naval service of any foreign
state at war with any friendly state ;

Such person shall be deemed to have committed an offence against
this Act, and the following consequences shall ensue :

(1) ' The offender shall be punishable ' as stated -post, p. 292.

CHAP. III.] Foreign Enlistment Act. 291

(2) ' The ship in respect of which any such offence is committed,
and her equipment shall be forfeited to His Majesty ' (w) :

' Provided that a person building, causing to be built, or equippLag
a ship in any of the cases aforesaid, in pursuance of a contract made
before the commencement of such war as aforesaid, shall not be liable
to any of the penalties imposed by this section in respect of such building
or equipping if he satisfies the conditions following : (that is to say),

(1) ' If forthwith upon a proclamation of neutrality being issued by
His Majesty he gives notice to the Secretary of State, that he is so
buildiag, causing to be built, or equipping such ship, and furnishes such
particulars of the contract and of any matters relating to, or done, or to
be done under the contract as may be required by the Secretary of
State :

(2) ' If he gives such security, and takes and permits to be taken
such other measures, if any, as the Secretary of State may prescribe
for ensuring that such ship shall not be despatched, delivered, or removed
without the licence of His Majesty until the termination of such war
as aforesaid.'

Sect. 9. ' Where any ship is built by order of or on behalf of any
foreign state when at war with a friendly state, or is delivered to or to
the order of such foreign state, or any person who to the knowledge of
the person building is an agent of such foreign state, or is paid for by
such foreign state or such agent, and is employed in the military or naval
service of such foreign state, such ship shall, until the contrary is proved,
be deemed to have been built with a view to being so employed, and the
burden shall lie on the builder of such ship of proving that he did not know
that the ship was intended to be so employed in the military or naval
service of such foreign state.'

Sect. 10. ' If any person within the dominions of His Majesty, and
without the licence of His Majesty, —

' By adding to the number of the guns, or by changing those on board
for other guns, or by the addition of any equipment for war, increases
or augments, or procures to be increased or augmented, or is knowingly
concerned in increasing or augmenting the warlike force of any ship
which at the time of her being within the dominions of His Majesty was
a ship in the military or naval service of any foreign state at war with
any friendly state, — such person shall be guilty of an offence against this
Act, and shall be punishable ' as stated 'post, p. 292.

Sect. 11. 'If any person within the limits of His Majesty's dominions,
and without the Ucence of His Majesty, —

' Prepares or fits out any naval or military expedition to proceed
against the dominions of any friendly state, the following consequences
shall ensue :

(1) 'Every person engaged in such preparation or fitting out, or

(w) Under this provision, in the ' Gaunt- committee held that the engagement of

let,' L. R. 4 P.O. 184, a British steam tug the tug for the purposes above stated,

was forfeited to the Crown for towing a amounted to despatching a ship for the

prize taken by the French from the Ger- purpose of taking part in the naval service

mans from British territorial waters into of a belligerent.
French territorial waters. The judicial

292 Of Offences Relating to the Law of Nations, [book ii.

assisting therein, or employed in any capacity in such expedition, shall
be guilty of an ofEence against this Act, and shall be punishable ' as stated
infra.

(2) ' All ships, and their equipments, and all arms and munitions
of war, used in or forming part of such expedition, shall be forfeited
to His Majesty.'

The offence created by this section is constituted by the purchase of
guns and ammunition in this country and their shipment for a foreign
port for the purpose of there being put on board a ship, with the know-
ledge of the purchaser and shipper that they are to be used in a hostile
demonstration against such state, though the shipper takes no part
in any overt act of war, and the ship is not fully equipped for the
expedition within any port belonging to the King's dominions (x).

Where an expedition in contravention of this section is prepared by
any person within the King's dominions, any British subject who assists
in the preparation is guilty of an ofEence against the Act, even if his
assistance is rendered from a place without the King's dominions (y).

Sect. 12. ' Any person who aids, abets, counsels, or procures the com-
mission of any ofEence against this Act shall be liable to be tried and
punished as a principal offender.'

Punishment. — Each of the sects. 4, 5, 6, 7, 8, 10, and 11 provides
that an offence under the section shall be ' punishable by fine and
imprisonment, or either of such punishments, at the discretion of the
Court before which the offender is convicted ; and imprisonment, if
awarded, may be either with or without hard labour.'

By sect. 13, ' The term of imprisonment to be awarded in respect of
any offence against this Act shall not exceed two years.'

Legal Procedure.— Sect. 16. ' Any offence against this Act shall, for
all purposes of and incidental to the trial and punishment of any person
guilty of any such offence, be deemed to have been committed either
in the place in which the offence was wholly or partly committed, or in any
place within His Majesty's dominions in which the person who committed
such offence may be ' (z).

Sect. 17. ' Any offence against this Act may be described in any
indictment or other document relating to such offence, in cases where
the mode of trial requires such a description, as having been committed
at the place where it was wholly or partly committed, or it may be averred
generally to have been committed within His Majesty's dominions,
and the venue or local description in the margin may be that of the
county, city, or place in which the trial is held.'

Sect. 18. ' The following authorities, that is to say, in the United
Kingdom, any judge of a superior Court, in any other place within the
jurisdiction of any British Court of justice, such Court or, if there are
more Courts than one, the Court having the highest criminal jurisdiction
in that place, may, by warrant or instrument in the nature of a warrant
in this section included in the term " warrant," direct that any offender

ix) R. I,. Sandoval, 16 Cox, 206. 8. U (z) Under the Act of 1819 offences corn-
applies to foreigners as weU as to British mitted out of the United Kingdom were
subjects. See R. v. Sandoval, ubi sup. triable only in the Court of K.B. at West-

{y) R. V. Jameson [1896], 2 Q.B. 425. minster {59 Geo. III. c. 69 s 3)

CHAP. III.] Foreign Enlistment Ad. 293

charged witli an offence against this Act shall be removed to some other
place in His Majesty's dominions for trial, in cases where it appears
to the authority granting the warrant that the removal of such offender
would be conducive to the interests of justice, and any prisoner so removed
shall be triable at the place to which he is removed, in the same manner
as if his offence had been committed at such place.

'Any warrant for the purposes of this section may be addressed to the
master of any ship or to any other person or persons, and the person or
persons to whom such warrant is addressed shall have power to convey
the prisoner therein named to any place or places named in such warrant,
and to deliver him, when arrived at such place or places, into the custody
of any authority designated by such warrant.

' Every prisoner shall, during the time of his removal under any such
warrant as aforesaid, be deemed to be in the legal custody of the person
or persons empowered to remove him.'

Sect. 19 directs how proceedings are to be taken for the condemnation
and forfeiture of a ship, &c., for offences against the Act.

Sect. 20. ' Where any offence against this Act has been committed by
any person by reason whereof a ship, or ship and equipment, or arms
and munitions of war, has or have become liable to forfeiture, proceed-
ings may be instituted contemporaneously or not, as may be thought
fit, against the offender in any Court having jurisdiction of the offence,
and against the ship, or ship and equipment, or arms and munitions of
war, for the forfeiture in the Court of Admiralty ; but it shall not be
necessary to take proceedings against the offender because proceed-
ings are instituted for the forfeiture, or to take proceedings for the
forfeiture because proceedings are taken against the offender.'

Sect. 14 provides for the restoration of illegal prizes brought into
British ports.

Sect. 15 provides that for the purposes of this Act a Licence by His
Majesty shall be under the sign manual of His Majesty or be signified
by Order in Council or by proclamation of His Majesty.

Sects. 21-26, and the following sections, enact that the Secretary of
State and certain other persons, including the Lord-Lieutenant of Ireland
and the Governors or Lieutenant-Governors of Man, the Channel Islands,
and British possessions (sect. 26), may seize or detain any ship hable to be
seized or detained in pursuance of this Act, and give them certain powers
for such purpose. If there is no reasonable and probable cause for the
detention, the High Court Admiralty Division may release the ship and
order indemnity to the owner (sect. 23) {a).

Sect. 27 gives an appeal from decisions of a Court of Admiralty under
the Act or in other Admiralty cases.

Sect. 28 gives an indemnity to officers and local authorities in respect
of the seizure and detention of ships.

(a) In the ' International ' [1871], L. R. the task on which the ship was engaged was
3 Adm. & Ecc. 321, release was ordered of a not military or naval service within the
British ship, which during the Franco- Act, as the cable was not being laid ex-
German war was laying a submarine tele- pressly for furtherance of miUtary opera -
graph cable, under contract with the tions.
French Government, on the ground that

294 Of Offences Mating to tie Laiv of Nations. tSOoK 11.

Sect. 29. ' The Secretary of State shall not, nor shall the chief (6)
executive authority be responsible in any action or other legal proceed-
ings whatsoever for any warrant issued by him in pursuance of this
Act, or be examinable as a witness, except at his own request, in any
Court of justice in respect of the circumstances which led to the issue of the
warrant.'

Interpretation. — Sect. 30. ' In this Act, if not inconsistent with the
context, the following terms have the meanings hereinafter respectively
assigned to them ; that is to say,

' " Foreign state " includes any foreign prince, colony, province or
part of any province or people, or any person or persons exercising or
assuming to exercise the powers of government in or over any foreign
country, colony, province, or part of any province or people (c) :

' " Military service " shall include military telegraphy {d) and any
other employment whatever, in or in connection with any military
operation :

' " Naval service " shall, as respects a person, include service as a
marine, employment as a pilot in piloting or directing the course of a
ship of war or other ship when such ship of war or other ship is being
used in any military or naval operation, and any employment whatever
on board a ship of war, transport, store ship, privateer or ship under
letters of marque ; and as respects a ship, include any user of a ship
as a transport, store ship, privateer or ship under letters of marque :

' " United Kingdom " includes the Isle of Man, the Channel Islands,
and other adjacent islands :

British possession " means any territory, colony, or place
being part of His Majesty's dominions, and not part of the United
Kingdom, as defined by this Act :

' " The Secretary of State " shall mean any one of Her Majesty's
Principal Secretaries of State :

The Governor " shall as respects India mean the Governor
General or the Governor of any presidency, and where a British pos-
session consists of several constituent colonies, mean the Governor
General of the whole possession or the Governor of any of the con-
stituent colonies, and as respects any other British possession it shall
mean the officer for the time being administering the government of
such possession ; also any person acting for or in the capacity of a governor
shall be included under the term " Governor " :

' " Court of Admiralty " shall mean the High Court of Admiralty
of England or Ireland (e), the Court of Session of Scotland, or any Vice-
Admiralty Court within His Majesty's dominions :

Ship " shall include any description of boat, vessel, floating battery,
or floating craft ; also any description of boat, vessel, or other craft or
battery, made to move either on the surface of or under water, or some-
times on the surface of and sometimes under water :

Building " in relation to a ship shall include the doing any act

(6) See s. 26, ante, p. 293. & Eoo]. 321.

(c) This contemplates the case of states (e) These Courts are now merged in the
in a condition of civil war. High Court of Justice in England and

(d) See the ' International,' L. R. 3 Adm. Ireland.

Chap, tit] foreign Enlistment Ad. 2d5

towards or incidental to the construction of a ship, and all words having
relation to building shall be construed accordingly :

' " Equipping " in relation to a ship shall include the furnishing a
ship with any tackle, apparel, furniture, provisions, arms, munitions, or
stores, or any other thing which is used in or about a ship for the purpose
of fitting or adapting her for the sea or for naval service, and all words
relating to equipment shall be construed accordingly :

' " Ship and equipment " shall include a ship and everything in or
belonging to a ship :

' " Master " shall include any person having the charge or command
of a ship.'

It must be noted that most of these definitions contain the word
' include,' and do not restrict the words used in the prohibitory sections
to the matters specifically mentioned in the definition (/).

Sect. 32. ' Nothing in this Act contained shall subject to forfeiture any
commissioned ship of any foreign state {g), or give to any British Court
over or in respect of any ship entitled to recognition as a commissioned
ship of any foreign state any jurisdiction which it would not have had if
this Act had not passed ' Qi).

Sect. 33. ' Nothing in this Act contained shaU extend or be con-
strued to extend to subject to any penalty any person who enters into
the military service of any prince, state, or potentate in Asia, with such
leave or licence as is for the time being required by law in the case
• of subjects of His Majesty entering into the military service of princes,
states, or potentates in Asia ' {i).

It was held that the Act of 1819 created an offence against the State,
and the Court (of Queen's Bench) refused to grant a criminal information
for such offence on the application of a private prosecutor, leaving
the case to be dealt with like other public offences (/).

(/) The 'Gauntlet,' L. B. 4 P. C. 184, (i) This section is taken from 59 Geo. III.

192. e. 69, a. 12, with the omission of references

(g) See the definition, supra, p. 294. to Indian governors.

(h) See Dobree v. Napier, 2 Bing. (N. C.) (?) Ex parte Crawahaw, 8 Cox, 356. But

781. see R. v. Granatelli, 7 St, Tr. (N. S.) 759.

( 297 )

CHAPTEE THE FOURTH.

PUBLICATIONS CALCULATED TO INTERFERE WITH PEACEFUL RELATIONS
WITH FOREIGN STATES.

Upon the ground that malicious and scurrilous reflections upon
foreign sovereigns or their representatives may tend to involve this
country in disputes, animosities, and warfare, it has been held that
publications tending to degrade and defame such persons are indictable.
Thus an information was filed, by the command of the Crown, for a Ubel
on the French ambassador at the British court, consisting principally
of angry reflections on his public conduct and fitness, and charging him
with ignorance in his official capacity, and with having used stratagems
to supplant and depreciate the defendant at the court of Versailles (a).
Lord George Gordon was found guilty upon an information for having
published severe reflections upon the Queen of France, in which she was
represented as the leader of a faction, and on the French ambassador
in London. Ashhurst, J., in passing sentence, said that the object of
the publication being to rekindle animosities between England and
France by the personal abuse of the sovereign of one of them, it was
highly necessary to repress an offence of so dangerous a nature : and
that such libels might be supposed to have been made with the connivance
of the state where they were published, unless the authors were sub-
jected to punishment (6). A defendant was found guilty upon an inform-
ation charging him with having published the following libel : ' The
Emperor of Russia is rendering himself obnoxious to his subjects by
various acts of tyranny, and ridiculous in the eyes of Europe by his
inconsistency. He has lately passed an edict to prohibit the exportation
of deals and other naval stores. In consequence of this ill-judged law,
a hundred sail of vessels are likely to return to this country without
freight '(c). And where the defendant was charged by an information
with a libel upon Napoleon Buonaparte, EUenborough, C.J., said to
the jury : ' I lay it down as law, that any publication which tends to
degrade, revile, and defame persons in considerable situations of power
and dignity in foreign countries, may be taken to be and treated as a
libel ; and particularly when it has a tendency to interrupt the pacific
relations between the two countries' (d).

(a) B. V. D'Eon [1764], 1 W. Bl. 510 ; Holt on Libel, 78 ; 2 Starkie on Libel, 218.

3 Burr. 1516. The defendant was convicted, but was

(6) R. V. Lord George Gordon [1787], never called upon to receive judgment. At

22 St. Tr. 177. the time of the prosecution there was peace

{d) R. V. Peltier [1803], 28 St. Tr. 527. the trial war broke out again.

298 Of Offences Relatmg to the Law of Nations. [booK 11.

In E. V. Most (e) the defendant was convicted upon an indictment
containing counts for libels on the sovereigns of Europe, published in
a newspaper, encouraging assassination, and intended to create discord
between the Queen and the said sovereigns. A case was stated on the
sufficiency of this and other counts in the indictment. The conviction
was affirmed with reference to counts charging incitement to assassina-
tion (/). Coleridge, L.C.J., said: 'This is not the less an endeavour to
persuade, or an encouragement, to murder either named individuals or
unnamed individuals because it is under another aspect of the law a
seditious and scandalous libel ' {g).

In E. «. Antonelli(/i), Phillimore, J., said: 'Libels which bring persons
into hatred or contempt may apply to persons outside the dominions of
the Ejng, because they are liable to bring the peaceful relations between
states to an end. So Lord George Gordon was tried and punished for
libelling Marie Antoinette, Queen of France ' (^). But he added : ' Seditious
libels are such as tend to disturb the government of this country, and in
my opinion a document published here, which was calculated to disturb
the government of some foreign country, is not a seditious libel, nor
punishable as a libel at all. ... To hold otherwise would be to hold
that all the strong language used against the government of Turkey at
the time of the Bulgarian rebellion was seditious libel, and it would
make many of our great statesmen guilty of seditious libel, and those
persons also who espoused the cause of Italian liberty.'

(e) [1881] 7 Q.B.D. 244. {h) [1905] 70 J. P. 4.

(/) Vide post, p. 835. (») Ante, p. 297.

(g) 9 Q.B.D. 253.

( 298a )

CANADIAN NOTES.
Libel on Foreign Sovereign. — Code sec. 135.

( 299 )

CHAPTER THE FIFTH.

VIOLATION OF DIPLOMATIC PRIVILEGES.

By the Diplomatic Privileges Act, 1708 (7 Anne, c. 12 (a)), s. 3, ' . . . all
writs and processes that shall at any time hereafter be sued forth or prose-
cuted, whereby the person of any ambassador or other public minister
of any foreign prince or state, authorised and received as such by Her
Majesty, her heirs or successors, or the domestic or domestic servant of
any such ambassador or other public minister may be arrested or
imprisoned, or his or their goods or chattels may be distrained, seized
or attached, shall be deemed and adjudged to be utterly null and void
to all intents and purposes whatsoever.'

By sect. 4, ' ... In case any person or persons shall presume to sue
forth or prosecute any such writ or process, such person and persons and
all attorneys and solicitors prosecuting and soliciting in such case, and all
officers executing any such writ or process, being thereof convicted by
the confession of the party or by the oath of one or more credible witness
or witnesses before the Lord Chancellor or Lord Keeper of the Great Seal,
the Chief Justice of the Court of Queen's Bench, the Chief Justice of the
Court of Common Pleas, for the time being, or any two of them, shall be
deemed violaters of the laws of nations and disturbers of the public repose,
and shall suffer such pains, penalties, and corporal punishments as the said
Lord Chancellor, Lord Keeper and the said Chief Justices, or any two
of them, shall judge fit to be imposed and inflicted.'

Sect. 5 excludes from the benefit of the Act any merchant or other trader
within the bankruptcy statutes who ' shall put himself into the service
of any such ambassador or public minister.' And sect. 6 prohibits pro-
ceedings for arresting the servant of an ambassador, unless the name of
the servant is first registered in the office of one of the principal secretaries
of state, and by him transmitted to the sheriffs of London and Middlesex.

There is no recorded case of a prosecution for breach of this Act : and
consequently it has not been determined whether the expressions ' writ
or process' are limited to civil proceedings or extend to criminal process.
The Act is regarded as declaratory of the common law with reference to
the privilege of diplomatic officers (&) and their suites. The immunity

(a) This statute, sometimes described as of Anne : U. S. Rev. Statt. ss. 4062-4065,

the Act of Apology, was passed in conse- originally framed in 1790. See XJ. S. v.

quence of the arrest on civil process of the Ortega [1826], 11 Wheaton U. S. 467.
ambassador of Peter the Great to the Court (6) The privilege is usually rested on the

of St. James'. See PhiUimore Int. Law fiction of exterritoriality. See Musurua v.

(2nd ed.), vol. ii. p. 228 ; HaUeck Int. Law Gadban [1894], 1 Q.B. 533 ; [1894] 2 Q.B.

(4th ed.), vol. i. p. 362 ; Hall Int. Law 352. It is not limited to subjects of the

(5th ed.) 172; Law Magazine (4th series), nation sending the ambassador. Macartney

vol. XX. p. 43. There is in force in the v. Garbutt, 24 Q.B.D. 368.
United States a statute based on the Act

300 Of Offences Mating to the Law of Nations. [BooK ii.

recognised does not extend to consuls (c). Apart from this Act it seems
to be accepted that diplomatic officers and their suites are, as a matter of
amity if not of strict international law, privileged against prosecution
for any breach of the criminal law of England {d), and such immunity
has been claimed in respect of breaches of the law as to driving motor-
cars, public health, and of a claim by coroners to hold inquests on persons
dying in an embassy, or on diplomatic officials supposed to have committed
suicide. The immunity is the privilege of the sovereign or state which
accredits the officer, and might, it would seem, be waived by the
sovereign {d).

(d) Provisional arrest in extreme cases made for his recall for trial in his own
may be justified ; or the offender may be country. Hall Int. Law (5th ed.) 172.

(301)

BOOK THE THIRD.

OF OFFENCES AGAINST THE SECURITY OF THE STATE.

PEELIMINAEY.

The offences of treason and treason-felony are not within the scope of
this work (a), and attempts to interfere with government by tumultuous
petitions and meetings to over-awe Parliament are dealt with under the
title ' Kiot ' {aa).

CHAPTER THE FIRST.

OF SEDITION.

A. General Definition of the Offence.

Sedition consists in acts, words, or writings intended or calculated,
under the circumstances of the time (b), to disturb the tranquillity of the
State, by creating ill-will, discontent, disaffection, hatred, or contempt
towards the person of the King, or towards the Constitution or Parlia-
ment (bb), or the Government, or the established institutions of the
country (c), or by exciting ill-will between different classes of the King's
subjects (d), or encouraging any class of them to endeavour to disobey,
defy, or subvert the laws (e) or resist their execution, or to create tumults
or riots, or to do any act of violence or outrage or endangering the public
peace (/).

When the offence is committed by means of writing, or print, or
pictures (g), it is termed seditious libel.

The offence is a misdemeanor indictable at common law (h).

As to seditious conspiracy, vide ante, Book I., Chapter VI., and post,
p. 332.

(a) See Archb. Cr. PI. (23rd ed.), 928 et 507. Steph. Big. Or. L. (6th ed.) art.

seq. 98. Odgers on Libel (4th ed.) 487.

{aa) Post, Bk. vi. o. i., p. 409. (/) See R. v. Burdett [1820], 1 St. Tr.

(6) R. V. FusaeU [1848], 6 St. Tr. (N. S.) (N. S.) 1 ; 3 B. & Aid. 717 ; 4 B. & Aid. 95,

723. 314. R. V. Cobbett [1831], 2 St. Tr. (N. S.)

(65) By vilifying or degrading them, see 789. R. v. Lovett, 9 C. & P. 462. R. v.

Holt, Libel, 86. R. v. Burdett, 4 B. & SulUvan, 11 Cox,44, 51. R. u. Jones [1848],

Aid. 95. 6 St. Tr. (N. S.) 783 (Chartists) ; and see per

(d) R. V. Burns, 16 Cox, 355, Cave, J., Tr. (N. S.) 591n., and 6th Report, Criminal
post, p. 302, and see 60 Geo. III. & 1 Geo. Law Commissioners (1841), p. 17, cited
IV. c. 8, s. 1, post, p. 310. 6 St. Tr. (N. S.) 727.

Tr. (N. S.) 1149. R. v. Grant, 7 St. Tr. (N. S.) {h) R. v. Stroud, 3 St. Tr. 235.

302 Of Offences against the Security of the State, [book hi.

In the case of a seditious libel it is doubtful whether at common law the
offence is complete when the libel is composed, or whether it must be
shewn that it was also published (i).

Seditious publications are not justified or excused by proof of the
truth of the statements made {i).

According to the older authorities it is seditious wantonly to defame
or indecorously to calumniate that economy, order, and constitution of
things which make up the general system of the law and government of
the country (/) ; and more particularly to degrade or calumniate the
person and character of the sovereign {h), or the administration of his
government by his officers and ministers of state {I), or the administra-
tion of justice by his judges [m], or the proceedings of either House of
Parliament {n).

The present view of the law is best stated in R. v. Burns (o). In that
case the defendants were charged in one count ' that they at Trafalgar
Square with great numbers of other persons assembled and met together,
and that they being wicked, malicious, and seditious persons, wickedly,
maliciously, and seditiously contriving and intending the peace of our
said lady the Queen, and of this realm, and of the liege subjects of our said
lady the Queen, to disquiet and disturb, and the liege subjects of our
said lady the Queen, to incite and to move to contempt, hatred, and
dislike of the government established by law within this realm, and to
incite and to move and persuade great numbers of the liege subjects of
our said lady the Queen, to insurrections, riots, tumults, and breaches of
the peace, and to stir up jealousies, hatred, and ill-will between different
classes of the said liege subjects, and to prevent by force and arms the
execution of the laws of this realm and the preservation of the public
peace, on the day and in the year aforesaid, in the presence and hearing
of divers of the liege subjects of our lady the Queen, to wit, the persons
assembled together as aforesaid in Trafalgar Square as aforesaid and
within the jurisdiction of the said Court, in a certain speech and discourse
by him the said John Burns, then addressed to the said liege subjects so
then assembled together as aforesaid, unlawfully, wickedly, maliciously,
and seditiously, openly, and publicly did publish, utter, pronounce, and
declare, and cause to be published, uttered, pronounced, and declared,
with a loud voice of and concerning the government as established by
law within this realm, and of and concerning the Commons House of
Parliament, and the members thereof, and of and concerning divers
liege subjects of our said lady the Queen, whose names are to the jurors
aforesaid unknown, amongst other words and matters, the false, wicked,
seditious, and inflammatory words and matter following, that is to say :
[The words complained of were here set out] against the peace of our
lady the Queen, her crown and dignity.'

(i) R.D.Burdett,l St. Tr.(N.S.) 1,122, 138. (m) Ante, p. 154, post, p. 537. Odgers

R. V. Duffy, 2 Cox, 45. As to evidence after on Libel (4th ed.), 484.
verdict in mitigation, see R. v. Burdett. (») Post, p. 313.

{j) Holt, Libel, 82. (o) [1886], 16 Cox, 355. The first-

(k) Post, p. 311. named defendant became in 1906 President

(I) R. V. Lambert & Perry, 2 Camp. 398, of the Local Government Board and a

31 St. Tr. 335, fost, p, 313. member of the Privy Council.

CHAP. I.] Of Sedition. 303

Another count charged the defendants with a conspiracy to speak
seditious words and incite to sedition.

Cave, J., in charging the jury, said : ' It is now my duty to explain
to you the rules of law which ought to govern you in considering this
case, and also to summarise shortly for your benefit the evidence which
has been given, so that you may have the less difficulty in applying
the principles of the law to that evidence. There is undoubtedly no
question at law of the right of meeting in public, and the right of free
discussion is also perfectly unlimited, with the exception, of course,
that it must not be used for the purpose of inciting to a breach of the
peace or to a violation of the law. The law upon the question of what
is seditious and what is not is to be found stated very clearly in a book
by Stephen, J., who has undoubtedly a greater knowledge of criminal
law than any other judge who sits upon the bench, and what he has said
upon the subject of sedition was submitted to the other judges, who some
time back were engaged with him in drafting a criminal code, and upon
their report the commissioners say that his statement of law appears
to them to be stated accurately as it exists at present. So that that state-
ment has not only the authority of Stephen, J., but also the authority of
the judges who were associated with him in preparing the criminal code.
This is what he says on seditious words and libels .: " Every one commits
a misdemeanor who publishes verbally or otherwise words or any docu-
ment with a seditious intention. If the matter so published consists of
words vspoken, the offence is called the speaking of seditious words."
That is what we have to deal with to-day. " If the matter so published is
contained in anything capable of being a libel the offence is caUed the
publication of seditious libel" {f). The next question that one asks is
this : There are two offences, one is the offence of speaking seditious
words, and the other offence is the publication of a seditious libel. It
is obviously important to know what is meant by the word " sedition,"
and Stephen, J., proceeds in a subsequent article to give a definition of it.
He says : " A seditious intention is an intention to bring into hatred or
contempt, or to excite disaffection against the person of Her Majesty,
her heirs, or successors, or the government and constitution of the United
Kingdom, as by law established, or either House of Parliament, or the
administration of justice, or to excite Her Majesty's subjects to attempt
otherwise than by lawful means the alteration of any matter in Church
or State as by law established, or to raise discontent or disaffection amongst
Her Majesty's subjects or to promote feelings of ill-wiU and hostility
between different classes of such subjects." Stephen, J., goes on to point
out what sort of intention is not seditious. " An intention to shew that
Her Majesty has been misled or mistaken in her measures, or to point out
errors or defects in the government or constitution as by law established,
with a view to their reformation, or to excite Her Majesty's subjects to
attempt by lawful means the alteration of any matter in Church or State
as by law established, or to point out, in order to their removal, matters
which are producing, or have a tendency to produce feelings of hatred and
ill-will between classes of Her Majesty's subjects, is not a seditious

(p) Stephen, Dig. of Crim. Law (6th ed.), Arts. 96-98.

304 Of Offences against the Security of the State, [book hi.

intention " (q). So there he gives in these two classes what is and what is
not sedition. Now, the seditious intentions which it is alleged existed in the
minds of the prisoners in this case are : First, an intention to excite Her
Majesty's subjects to attempt otherwise than by lawful means the altera-
tion of some matter in Church or State as by law established ; and secondly,
to promote feelings of hostility between different classes of Her Majesty's
subjects. This is necessarily somewhat vague and general, particularly
the second portion, which says it is a seditious intention to intend to
promote feelings of ill-will and hostility between different classes of Her
Majesty's subjects. I should rather prefer to say, that the intention to
promote feelings of ill-will and hostility between different classes of Her
Majesty's subjects may be a seditious intention according to circumstances,
and of those circumstances, the jury are the judges ; and I put this
question to the Attorney-General in the course of the case : " Suppose a
man were to write a letter to the papers attacking bakers and butchers
generally with reference to the high prices of bread or meat, and imputing
to them that they were in a conspiracy to keep up high prices, — would
that be a seditious libel, being written and not spoken ? " To which the
Attorney-General gave me the only answer which it was clearly possible
to give under the circumstances : " That must depend upon the circum-
stances." I, sitting here as a judge, cannot go nearer than that. Any
intention to excite ill-will and hostility between difierent classes of Her
Majesty's subjects may be a seditious intention ; whether in a particular
case this is a seditious intention or not, the jury must judge and decide
in their own minds, taking into consideration the whole of the circum-
stances of the case. You may not unnaturally say that that is a some-
what vague statement of the law, and ask by what principle shall we be
governed in deciding when an intention to excite ill-will and hostility is
seditious, and when it is not. For your guidance, I will read to you what
was said by Fitzgerald, J., in the case of E. v. SulHvan (r), which was a
prosecution for a seditious libel, the only difference between the two cases
being, of course, that while seditious speeches are spoken a seditious libel
is written, but in each of them the adjective " seditious " occurs, and what
is a seditious intention in one case will equally be a seditious intention in
the other. He said : " As such prosecutions are unusual, I think it
necessary in the first instance to define sedition and point out what is a
seditious libel. Sedition is a crime against society, nearly allied to that
of treason, and it frequently precedes treason by a short interval." It
has been said very truly that there is no such offence as sedition itself,
but it takes the form of seditious language either written or spoken, and
it is in that sense of course that the learned judge's words are intended
to be understood. " Sedition itself is a comprehensive term, and it
embraces all those practices, whether by word, deed, or writing, which are
calculated to disturb the tranquillity of the State, and lead ignorant
persons to endeavour to subvert the government and the laws of the
Empire. The objects of sedition generally are to induce discontent and
insurrection, and to stir up opposition to the government, and bring the

(q) Stephen, Dig. Grim. Law (6th ed.), (r) 11 Cox, 44 (Ir.).

Art. 98.

CHAP. 1.1 Of Sedition. 305

administration of justice into contempt ; and the very tendency of
sedition is to incite the people to insurrection and rebelHon. Sedition
has been described as disloyalty in action, and the law considers as
seditious all those practices which have for their object to excite discon-
tent or disaffection, to create pubhc disturbances, or to lead to civil war ;
to bring into hatred or contempt the sovereign or the government, the
laws or constitution of the realm, and generally all endeavours to promote
public disorder." Then a little further on he says : " Words may be of a
seditious character, but they might arise from sudden heat, be heard only
by a few, create no lasting impression, and differ in malignity and per-
manent effects from writings. Sir Michael Foster said of the latter (s) :
' Seditious writings are permanent things, and if published they scatter
the poison far and wide. They are acts of deliberation, capable of satis-
factory proof, and not ordinarily liable to misconstruction ; at least they
are submitted to the judgment of the Court naked and undisguised, as
they came out of the author's hands.' That points to the nature of the
distinction between seditious writings and words, and also points to the
difference in the effect which they have, and the extent to which that
effect goes, though of course in regard to seditious words, there may be a
very great distinction between words uttered to two or three companions
in social intercourse, and words uttered to a large multitude." That
language the learned judge spoke when he was charging the grand jury
upon the subject. When he came to sum up the case to the jury who were
actually trying it, after a true bill had been found, he said, and perhaps
this is more apposite in shewing the spirit in which you ought to deal
with the present case so far as you can : " I invite you to deal with the
case, which is a grave and important case, in a fair, free, and liberal
spirit. In-deaUng with the articles you should not pause upon an objec
tionable sentence here, or a strong word there. It is not mere strong
language, such as ' desecrated a court of justice,' or tail language, or
turgid language that should influence you. You should, I repeat, deal
with the articles in a free, fair, and liberal manner. You should recollect
that to public political articles great latitude is given {t). Dealing as
they do with the affairs of the day, such articles if written in a fair spirit,
and hona -fide, often result in the production of great pubhc good. There-
fore I advise and recommend you to deal with these publications in a
spirit of freedom, and not to view them with an eye of narrow criticism.
Again, I say you should not look merely to a strong word or a strong
phrase, but to the whole article, and so regarding each article, you should
recollect that you are the guardians of the liberty of the press, and that
whilst you will check its abuse, you will preserve its freedom. You
will recollect how valuable a blessing the liberty of the press is to all of us,

(s) The Editors have been unable to inciting them to violence and outrage,
trace this quotation. In R. v. Collins (9 C. & P. 456), 3 St.

(t) See R. V. Burdett, 1 St. Tr. (N. S.) 1, Tr. (N. S.) 1149, Littledale, J., in dealing
where the jury were told to consider with a placard containing resolutions of a
whether a written address to the electors body known as the General Convention told
of Warwickshire relating to the Peterloo the jury that the question was whether the
meeting at Manchester contained a sober resolutions were a calm discussion of the
address to the reason of mankind as to the conduct of the police in repressing a riot in
conduct of the military in suppressing a, the Bull Ring at Birmingham or were
riot, or was an appeal to their passions meant to incite to the use of physical force.

VOL. I. ^

306 Of Offences against, the Security of the State, [book m.

and sure I am, that that hberty will meet no injury, suffer no diminution
at your hands. Viewing the case in a free, bold, manly, and generous
spirit toward the defendant, if you come to the conclusion that the
publications indicted are not seditious libels, or were not pubHshed in
the sense imputed to them, you are bound, and I ask you in the name of
free discussion, to find a verdict for the defendant. I need not remind
you of the worn-out topic to extend to the defendant the benefit of the
doubt. If on the other hand, on the whole spirit and import of these
articles, you are obliged to come to the conclusions that they are seditious
hbels, and that their necessary consequences are to excite contempt of
Her Majesty's Government, or to bring the administration of the law
into contempt and impair its functions, — if you come to that conclusion
either as to the articles or prints, or any of them, then it becomes your
duty honestly and fearlessly to find a verdict of conviction upon such
counts as you believe are proved." Now, that language was used, as I
have said, in reference to a seditious libel, but changing the language so
as to apply it to a speech, the principles thus laid down are clearly applic-
able to the case which you have now got before you. And, — although as
a judge I can tell you no more than that the intention to incite ill-will
amongst the different classes of Her Majesty's subjects may be seditious,
and that it is for you to decide, — I confess I should, if I were sitting
amongst you as a juryman, go on to say something of this kind which
you would or would not listen to, according as you found it to be quite in
reason. It is not a matter of law which you are bound to take from me,
but it is merely a matter which you would say to each other ; if you
think that these defendants, from the whole matter laid before you, had
a seditious intention to incite the people to violence, to create pubhc
disturbances and disorder, then undoubtedly you ought to find them
guilty. If from any sinister motive, as, for instance, notoriety, or for the
purpose of personal gain, they desired to bring the people into conflict
with the authorities, or to incite them tumultuously and disorderly to
damage the property of any unoffending citizen, you ought undoubtedly
to find them guilty. On the other hand, if you come to the conclusion
that they were actuated by an honest desire to alleviate the misery of
the unemployed, — if they had a real hona fide desire to bring that misery
before the public by constitutional and legal means, you should not be too
swift to mark any hasty or ill-considered expression which they might
utter in the excitement of the moment. Some persons are more led on,
more open to excitement than others, and one of the defendants, Burns,
even when he was defending himself before you, so prone was he to feehng
strongly what he does feel, could not refrain from saying that he was
unable to see misery and degradation without being moved to strong
language and strong action. I mention that to you to shew you the kind
of man he is, and for the purpose of seeing (if you come to the conclusion
that he was honestly endeavouring to call the attention of the authorities
to this misery, and honestly endeavouring to keep within the Hmits of
the law and the constitution) that you should not be too strong to mark
if he made use of an ill-considered, or too strong an expression. Now,
I come to the particular charge which is made against these men. It

CHAP. I.] Of Sedition. 307

divides itself roughly into two heads. There is, first, the charge that
they uttered certain words upon the occasion of this demonstration, and
that is separated into nine counts, and then there comes a general charge
which involves the whole of them, namely, that they agreed together
before they went to this meeting that they would make speeches with the
intention of exciting the people to disorder. I am unable to agree
entirely with the Attorney-General when he says that the real charge is
that, though these men did not incite or contemplate disorder, yet as it
was the natural consequence of the words they used, they are responsible
for it. In order to make out the offence of speaking seditious words, there
must be a criminal intent upon the part of the accused, they must be
words spoken with a seditious intent, and although it is a good working
rule, to say that a man must be taken to intend the natural consequence
of his acts, and it is very proper to ask a jury to infer, if there is nothing
to shew the contrary, that he did intend the natural consequences of his
acts, yet, if it is shewn from other circumstances, that he did not actually
intend them, I do not see how you can ask a jury to act upon what has
then become a legal fiction. I am glad to say that with regard to this
matter, I have the authority again of Stephen, J., who, in his " History of
the Criminal Law," has dealt with this very point; he deals with it in
reference to the question of seditious libel. He says (m) : " To make
the criminality of an act dependent upon the intention with which it is
done, is advisable in those cases only in which the intent essential to the
crime is capable of being clearly defined and readily inferred from the
facts. Wounding, with intent to do grievous bodily harm, breaking into
a house with intent to commit a felony, abduction with intent to marry
or defile, are instances of such offences. Even in these cases, however,
the introduction of the term ' intent ' occasionally led either to a failure
of justice or to the employment of something approaching to a legal
fiction in order to avoid it. The maxim that a man intends the natural
consequences of his acts is usually true, but it may be used as a way of
saying that, because reckless indifference to probable consequences is
morally as bad as an intention to produce those consequences, the two
things ought to be called by the same name, and this is at least an approach
to a legal fiction. It is one thing to write with a distinct intention to
produce disturbances, and another to write violently and recklessly
matter likely to produce disturbances " {uu). Now, if you apply that last
sentence to the speaking of words, of course it is precisely applicable to
the case now before you. It is one thing to speak with the distinct inten-
tion to produce disturbances, and another thing to speak recklessly and
violently of what is likely to produce disturbances. I must, however,
notwithstanding what I have said upon that subject, go on to tell you
that it is not at all necessary to the offence of uttering seditious words
that an actual riot should follow, that there should be an actual disturb-
ance of the public peace ; it is the uttering with the intent which is the

(m) Vol. ii. p. 359. Weekly Register was to manifest the design

(uv.) See R. v. Cobbett [1831], 2 St. Tr. alleged in the indictment, viz. to create

(N. S.) 789, where Tenterden, C.J., ruled discontent and incite to violence with

that the question for the jury was whether reference to firing stacks and breaking

the natural tendency of an article in the threshing machines.

308 Of Offences against the Security of the State, [book ill.

offence, not the consequences which follow, and which have really nothing
to do with the offence. A man cannot escape from the consequences of
uttering words with the intent to excite people to violence solely because
the persons to whom they are addressed may be too wise or too temperate
to be seduced into that violence. That has, however, no important
bearing in this case. If you come to the conclusion that language was
used by the defendants or any of them upon the occasion of that meeting
in Trafalgar Square, and that it was their intention to excite the people
to violence, to a breach of the law, why then that would undoubtedly be
the uttering of seditious words. And I apprehend that the Attorney-
General was anxious to fortify himself with this, that the actual dis-
turbances were the natural consequence of what was said, and for perhaps
more than one reason. In the first place the Government undoubtedly
declined to prosecute on the assumption that the defendants had actually
incited to the particular disturbances, and although that as I have said is
not at all necessary or essential to the procuring of a conviction, yet
undoubtedly that is the moral justification, so to say, the grounds upon
which the Government do place the action which they take, and therefore
if they can shew, or if you are satisfied that these disturbances, although
not contemplated by the defendants, were the natural consequence of
their acts, although that has nothing at all to do with the charge which
we are engaged in investigating, yet it does affect in some way the position
which the Government desire to take up. There is another point, how-
ever, which does affect the question which you have to try, and it is this,
as to the language used by the defendant. Was it used with the intention
to produce violence ? As something no doubt may be gathered from the
effect which was actually produced, there does come a point when one
must say, " This was so violent and reckless that it is impossible to
conceive that the man who uttered this did not intend the consequence
which must ensue from it." Again, there is another passage of Stephen,
J.'s, book, where he says (v) : " If a meeting is held for the purpose of
speaking seditious words to those who may attend it, those who take
part in that design are guilty of a seditious conspiracy." Now in order
to have a conspiracy you must have an agreement formed beforehand
between the parties in that conspiracy, that they will hold or have a
meeting, and that the words there spoken shall be words of sedition. As
I have said, I do not see any evidence that at all points to any such con-
spiracy, and I certainly should recommend you strongly not to pay any
further attention to that part of the case. But the Attorney-General
says, and very properly, although there may have been no previous
conspiracy, yet when people do go to a meeting there are circumstances
under which a man may be responsible not only for what he says, but
also for what some one else says. Now what are those circumstances ?
Stephen, J., says : " If at a meeting lawfully convened seditious words
are spoken, of such a nature as are likely to produce a breach of the peace,
that meeting may become unlawful, and all those who speak the words
undoubtedly are guilty of uttering seditious words, and those who do
anything to help those who speak to produce upon the hearers the natural

{v) Hist. Crim. Law, ii. 386.

CHAP. I.] Of Sedition. 309

effect of the words spoken." You must do something more than stand
by and say nothing ; if you express approval of the statements of speakers
who utter seditious language that equally will do ; if you make a speech
calculated to help that part of the speech made by some one else, and
which excited to disorder ; if you do anything to help that part of the
effect upon the hearers, then undoubtedly you will be guilty of uttering
seditious words just as if you spoke them yourself. But there must be
something of that kind. If one man uses seditious words at a meeting,
those who stand by and do nothing, although they do not reprobate them,
are not guilty of uttering seditious words. Those even who make a speech
themselves are not guilty of uttering seditious words unless you can
gather from the language they use that they are endeavouring to assist
the other man in carrying out that portion of his speech, and by that
course endeavouring to assist him in causing his words, which excite
to disorder, to produce their natural effect upon the people.' [The learned
judge then reviewed the evidence given on the part of the prosecution
and the defence, and pointed out that there was considerable difficulty
in separating and apportioning the different elements which contributed
to the riots, that public meetings and public discussions always
attracted together numbers of rough persons, members of criminal
classes, and other persons not dishonest, but noisy and disorderly, and
who would take advantage of the absence of the police to break windows
and street lamps, and do other mischief of that kind, and that it was
impossible to say that any disorder that arose was necessarily due to
speeches made by persons who were themselves orderly, because of the
presence of the disorderly elements of the crowd who had collected
together, and, in conclusion, said:] 'I must now leave you to apply the
principles of law I have laid down to the facts which have been laid before
you. I have to remind you of what you are asked to say. What you are
asked to decide on is whether the prisoners — all of them, or some of them,
and if some of them, which of them — did upon this occasion, in Trafalgar
Square, incite the people whom they were addressing to redress their
grievance by violence. Did they intentionally incite ill-will between
different classes in such a way as to be likely to lead to a disturbance of
the public peace ? I have already told you that you must take a broad
and even a generous view of the whole of the case presented to you. You
must not attach too much importance to isolated phrases, but you must
look at the general gist of the matter. You must consider the object
which took them there, the way they set about attaining it, and you must
also consider to some extent, as throwing some light upon your decision,
whether the riots which actually took place were the natural consequences
of speeches delivered on that occasion. I cannot conclude without
expressing my sense of the extreme folly of those who seek to incite the
people to violence. And for this reason : There has been no period of
history where violence was so practically useless. The Government being
in the hands of the people, none can hope to carry out by force views
which he might be able to effect by prudence and consistency, and by
legal and legitimate means. And therefore, to incite people to use force
is to expose foolish men, and men who do not see the danger they run, to

310 Of Offences against the Security of the State, [book hi.

a conflict with the authorities, with the certainty that they will have to
pay with grievous loss of life' (t«).

Trial and Punishment.— Sedition is not triable at quarter sessions (x).
Seditious libel may be tried in the county in which it was composed,
if composed for publication, or in the county where it is published {y).
At common law the punishment of sedition is by fine, or imprisonment
without hard labour, or both {z), with or without recognisances, with
sureties for good behaviour (a). There is no statutory limit to the term of
imprisonment or the amount of the fine. Persons sentenced to imprison-
ment for sedition or seditious libel are to be treated as offenders of the
first division (6). By the Criminal Libel Act, 1820 (c) (60 Geo. III. &
1 Geo. IV. 0. 8), provisions are made as to seditious libels ' tending to bring
into hatred or contempt the person or government of His Majesty, or
the government or constitution of the United Kingdom as by law estab-
lished, or either House of Parliament, or to excite His Majesty's subjects
to attempt the alteration of any matter in Church or State as by law estab-
lished otherwise than by lawful means' (sect. 1). 'Any person legally
convicted of having composed, printed, or published any such seditious
libel, as aforesaid, and shall, after being so convicted, offend a second
time, and be thereof legally convicted before any Commission of Oyer and
Terminer or Gaol Delivery, or in the King's Bench Division of the High
Court of Justice, may, on such second conviction, be adjudged at the dis-
cretion of the Court to suffer such punishment as may now (December 30,
1820) by law be infl.icted in cases of high misdemeanors ' . . . (sect. 4) {d).
Power is given in case of verdict or judgment by default for the Court in
which the verdict is taken or in which the judgment is had, to order
search for and seizure of all copies of the libel in the possession of the
defendant, or of any other person sworn to have copies in his possession
for the use of the defendant. The order for search may be executed by
a justice or constable (sect. 2). Copies seized under the order are disposed
of after final judgment as the Court may order, but returned if judgment
is arrested or on error revised (sect. 3).

No form of sedition can be justified at common law or under the Libel
Act, 1843 (6 & 7 Vict. c. 96), s. 6, by proof of the truth of the matters
published (e), the gist of the offence being in the intent to do one or other
of the matters stated in the definition (/).

It seems to be unnecessary to use the words ' seditious ' or ' seditiously '
in the indictment if the offence charged is by other words specifically
indicated (g). Seditious libel seems to be within sect. 7 of the Libel Act,

(«;) The jury returned a verdict of not tween 1821 and 1834, see 1 St. Tr. (N. S.)

guilty. 1385.

(x) 5 & 6 Vict. 0. 38, a. 1, ' offences (d) Tlie power to banish an offender on

against the king's title, prerogative, person, second conviction vi'as repealed in 1830

or government,' Post, Bk. xii. c. i. (11 Geo. IV. & 1 Will. IV. c. 73, s. 1). As

(y) R. V. Burdett, 1 St. Tr. (N. S.) 1, 154, to certificates o£ conviction see 60 Geo.

and see ante, p. 52. III. & 1 Geo. IV. c. 8, s. 7, -post, Bk. xiii.

(z) E. 0. Stroud, 3 St. Tr. 235. ' Evidence.'

(a) Ex parte, Seymour v. Davitt, 15 Cox, (e) R. v. Duffy, 6 St. Tr. (N. S.) 303 ; 2

242. Cox, 45. Ex parte O'Brien, 15 Cox, 180.

(6) 40 & 41 Vict. c. 21, s. 40, as amended R. v. Frankhn [1731], 17 St. Tr. 626.

by 61 & 62 Vict. c. 41, s. 6, vide ante, p. 213. (/) Ante, p. 301.

CHAP. I.] Of Publications against the King. 311

1843, enabling the defendant to displace a presumptive case of publica-
tion by his authority Qi), and is within the rules applying to privileged
communications in the case of defamatory libel {i). Fair comment on
public matters has been held not a defence (/). Bona -fide belief in the
truth of the matters stated may mitigate punishment but is no defence (k).
Under Fox's Act {I) the jury are entitled to return a general or special
verdict, as they choose.

B. Publications against the King.

Common Law. — Bare words, not relative to any act or design, how-
ever wicked, indecent, or reprehensible they may be, are not in themselves
overt acts of high treason (m), though words may expound an overt
act, and shew with what intent it was done (n). Generally speaking, any
words, acts, or writing in respect of the public acts or private conduct (o)
of the King which tend to vilify or disgrace the King, or to lessen him
in the esteem of his subjects, or any denial of his right to the crown, even
in common and unadvised discourse, may be punished as sedition (p).

Statute. — By the Succession to the Crown Act, 1707 (q), it is declared
treason to write or print against the Succession of the Crown as estab-
lished by the Acts of Settlement (r) and of Union with Scotland (s).

In E. V. Lambert (t), the defendant was charged with having published
a libel to the following effect : ' What a crowd of blessings rush upon
one's mind, that might be bestowed upon the country in the event of a
total change of system ! Of all monarchs, indeed, since the Revolution,
the successor of George the Third will have the finest opportunity of
becoming nobly popular.' Lord EUenborough, C.J., in summing up
the case to the jury, said, that the first sentence of this passage would
easily admit of an innocent interpretation ; that the fair meaning of
the expression ' change of system ' was a change of political system, —
not a change in the frame of the established government, but in the
measures of policy which had been for some time pursued ; and that by
total change of system was certainly not meant subversion or demolition,
the descent of the crown to the successor of His Majesty being mentioned

{h) Post, p. 1040: R. v. Bradlaugh, 15 ll,'prohibited]telHng or publishing any false

Cox, 218. As to this section see K. v. news or tales whereby discord or occasion

Holbrook, 3 Q.B.D. 60 ; 4 Q.B.D. 42. of discord or slander might grow between

(i) R. t). Gray, lOCox, 184(Ir.). 1 Will. & the King and the people. They were

M. sess. 2, c. 2 ; 3 & 4 Vict. c. 84 (Parlia- repealed in 1887 (52 & 53 Vict. c. 59). It

ment) ; 51 & 52 Vict. c. 64, ss. 3, 4 (News- is said to have been resolved by all the

papers) ; post, pp. 1047, 1049. judges that all writers of false news are

(j) R. V. MoHugh, ubi sup. indictable and punishable (4 Read. St. L.

(k) R. V. Burdett, 1 St. Tr. (N. S.) 1. Dig. L. L. 23). See Odgers on Libel (4th

(I) 32 Geo. III. 0. 60, ss. 1, 3. ed.), 430.

(m) 1 East, P. C. 117. (q) 6 Anne, o. 41 (c. 7 in Ruffhead's

(«) Crohagan's case, Cro. Car. 332. edition) ; and see other statutes for the

(o) St. Jolin's case, Noy, 105. purpose of guarding the King's character

(p) Shebbeare's case. Holt on Libel, 88 ; and title, cited in 2 Starkie on Libel, 171,

3 T. R. 430n. R. v. Clerk, 1 Barnard. 2nd ed.

(K.B.), 304 ; 1 Hawk. c. 6. R. v. Wilkes, 4 (r) 1 & 2 Will. & M. sess. 2, c. 2 ; 12 & 13

Burr. 2527; 19 St. Tr. 1075. 4 Bl. Com. 123 ; WiU. III. c. 2.
Odgers on Libel (4th ed.), 482. The old (s) 6 Anne, c. 11.

statutes de scandalis magnatum, 3 Edw. I. (t) 2 Camp. 398 ; 31 St. Tr. 340.

c. 34 ; 2 Rich. IL st. 1, o. 5 ; 12 Rich. II. c.

312 Of Offences against the Security of the State, [book hi.

immediately after. He proceeded : ' If a person who admits the wisdom
and virtues of His Majesty, laments that in the exercise of these he has
taken an unfortunate and erroneous view of the interests of his dommions,
I am not prepared to say that this tends to degrade His Majesty, or
to alienate the affections of his subjects. I am not prepared to say that
this is libellous. But it must be with perfect decency and respect, and
without any imputation of bad motives. Go one step further, and say or
insinuate that His Majesty acts from any partial or corrupt view or with
an intention to favour or oppress any individual or class of men, and it
would become most libellous.' Upon the second sentence, after stating
that it was more equivocal, and telling the jury that they must determine
what was the fair import of the words employed, not in the more lenient
or severe sense, but in the sense fairly belonging to them, and which they
were intended to convey. Lord Ellenborough proceeded : ' Now do
these words mean, that His Majesty is actuated by improper motives,
or that his successor may render himself nobly popular by taking a more
lively interest in the welfare of his subjects ? Such sentiments, as it would
be most mischievous, so it would be most criminal to propagate. But
if the passage only means that His Majesty, during his reign, or any
length of time, may have taken an imperfect view of the interests of the
country, either respecting our foreign relations, or the system of our
internal policy ; if it imputes nothing but honest error, without moral
blame, 1 am not prepared to say that it is a libel.' And again, towards
the conclusion of his address, his Lordship said : ' The question of inten-
tion is for your consideration. You will not distort the words, but give
them their application and meaning as they impress your minds. What
appears to me most material is the substantive paragraph itself (m) ;
and if you consider it as meant to represent that the reign of His Majesty
is the only thing interposed between the subjects of this country and
the possession of great blessings which are likely to be enjoyed in the reign
of his successor, and thus to render His Majesty's administration of his
government odious, it is a calumnious paragraph, and to be dealt with
as a libel. If on the contrary you do not see that it means distinctly,
according to your reasoning, to impute any purposed maladministration
to His Majesty, or those acting under him, but may be fairly construed
as an expression of regret that an erroneous view has been taken of public
affau-s, I am not prepared to say that it is a libel. There have been errors
in the administration of the most enlightened men.'

Falsely publishing that King George III. was labouring under mental
derangement was held to be an offence on the ground that it tended to
unsettle and agitate the public mind, and to lower the respect due to
the King («).

As to libel by defaming a deceased sovereign, see E. v. Hunt (w).

(m) This libel was published in a news- rent ' character,

paper ; ^nd it had been allowed to the (v) R. v. Harvey, 2 B. & C. 257 ; 2 St.

defendant to have read in evidence an ex- Tr. (N. S.) 1. Malice will be implied from

tract from the same paper connected with such wilful defaming without excuse,

the subject of the passage claimed as (w) 2 St. Tr. (N. S.) 69, where the indict-

Ubellous, although disjoined from it by ment was for the publication of Byron's

extraneous matter, and printed in «, diffe- ' Vision of Judgment ' ; see ■post, p. 1O20.

CHAP. I.] Of Publications against the Constitution. 313

C. Publications against the Constitution.

By an Act of 1662 (13 Car. II. st. 1, c. 1), s. 3, the penalties of praemunire
are incurred by persons wlio maliciously and advisedly, by ^writing,
printing, preaching, or express words, declare that Parliament has legis-
lative authority without the King. And by an Act of 1707 (6 Anne, c. 41),
s. 2, a like penalty is incurred by persons who maliciously or advisedly
by preaching, teaching, or express. words, maintain or affirm that any
person has title to the crown otherwise than in accordance with the
Act of Settlement. Prosecutions under these Acts are narrowly limited (x),
and are, in fact, never undertaken.

Apart from these Acts, under the law of sedition as now interpreted
there is perfect liberty to deride the constitution or to advocate its
alteration, provided that the advocacy is not calculated or intended to
produce civil commotion or insurrection {y).

The following ruHngs are here retained as giving a view of the law once
held, but now unlikely to be adopted (z) . It appears to have been adj udged,
that though no indictment lay for saying that the laws of the realm
were not the laws of God, because true it is that they are not the
laws of God ; yet that it would be otherwise to say that the laws of the
realm are contrary to the laws of God (z). And a defendant was con-
victed on an information charging him with having published, concerning
the government of England and the traitors who adjudged King Charles
the First to death, that the government of the kingdom consists of three
estates, and that if a rebellion should happen in the kingdom, unless
that rebellion was against the three estates, it was no rebellion (a). In
another case a person was convicted for publishing a libel, in which it
was suggested that the revolution was an unjust and unconstitutional
proceeding, and that the limitation established by the Act of Settlement
was illegal, and that the revolution and settlement of the crown as by
law established had been attended with fatal and pernicious consequences
to the subjects of the kingdom (6).

D. Publications against Parliament.

Both Houses of Parliament have and exercise the power of treating
libels against them as breaches of their privileges, and vindicating them
in the nature of contempts : and more cases of such libels are to be met
with in their journals than in the proceedings of the Courts of law(c).

(x) 13 Car. II. st. 1, c. 1, h. 1, prosecution upon hereditary right was held criminal,
to be within six months and by order of though it contained no reflection upon any
King or Privy Council (s. 4). 6 Anne, c. 41 part of the then government. E. v. Bed-
prosecution within three days ; two credible ford [1713], Gilb. 297 ; 2 Str. 789 cit.
witnesses.) SaohevereE's case [1709], 15 St. (6) R. v. Nutt [1754], Dig. L. L. 126, and
Tr. 1. see Dr. Shebbeare's case, 3 T. R. 430n.;

(y) See R. v. Burns, ante, p. 302. But Holt on Libel, 88 ; and R. v. Paine [1792],

see the Criminal Libel Act, 1820, ante, p. 22 St. Tr. 358 ; Holt on Libel, 88, 89 ; 2

310. Starkie on Libel, 164.

(z) See Odgers, Libel (4th ed.), 488. (c) They are ooUected in May, Pari. Pr.

(a) R. V. Harrison [1677], 3 Keb. 841 ; (11th ed.), pp. 76 et seq. The extent to

Vent. 324 ; Dig. L. L. 66. Dr. Odgers, which these powers are possessed by colonial

/. c. 488, suggests that the case was decided legislatures is considered in Odgers on Libel

under 13 Car, II. st. l,u. 1, supra. A treatise (4th ed.), 492,

314 Of Offences against the Security of the State, [book hi.

But publications reflecting upon the members or proceedings of the
Houses of Parliament are also punishable by the ordinary Courts {d).
In E. V. Stockdale (e), the Attorney-General in his speech to the jury,
after stating the address of the House of Commons to the King, praying
that His Majesty would direct the information to be filed, proceeded
thus : ' I state it as a measure which they have taken, thinking it in
their wisdom, as every one must think it, to be the fittest to bring before
a jury of their country an offender against themselves, avoiding thereby,
what sometimes indeed is unavoidable, but which they wish to avoid
whenever it can be done with propriety, the acting both as judges and
accusers, which they must necessarily have done, had they resorted to
their own powers, which are great and extensive, for the purposes of
vindicating themselves against insult and contempt, but which in the
present instance they have wisely forborne to exercise, thinking it better
to leave the offender to be dealt with by a fair and impartial jury.'

E. Publications against the Government.

The measures of the King and his advisers, and the proceedings and
policy of his government, may be criticised within due limits without
incurring the penalties of sedition. Every man has a right to give
every public matter a candid, full, and free discussion ; but although
the people have a right to discuss any grievances they have to complain
of, they must not do it in a way to excite tumult ; and if a party publish
a paper on any such matter, and it contain no more than a calm and
quiet discussion, allowing something for a little feeling in men's minds,
that will be no libel ; but if the paper go beyond that limit, and be calcu-
lated to excite tumult, it is a libel (/). This right extends to the press (g).

But the discussion of political measures cannot lawfully be made a

cloak for an attack upon private character. Libels on persons employed

in a public capacity may tend to scandalise the government by reflecting

on those who are entrusted with the administration of public affairs ;

for they not only endanger the public peace, as all other libels do, by

stirring up the parties immediately concerned to acts of revenge, but

also have a direct tendency to incline the people to faction and sedition (h).

And if a publication has a direct tendency to cause unlawful meetings

and disturbances, and to lead to a violation of the laws, it is a seditious

libel (i).

{d) In R. V. Rayner, 2 Barnard. (K.B.), might go on if the Lords and Commons

293, the defendant was convicted of printing were lopped off.' In all these cases the

a, scandalous libel on the Lords and Com- jury acquitted the defendants,

mons. And see R. v. Oweft [1752], 18 St. (e) 22 St. Tr. 238, 247.

Tr. 1203 ; MS. Dig. L. L. 67. In R. v. (/) R. v. Collins, 9 C. & P. 456 ; 3 St. Tr.

Stockdale [1788], 22 St. Tr. 238, an infor- (N. S.) 1149, Littledale, J. See the opinion

mation was filed by the Attorney- General expressed by the Attorney-General in R. ?;,

for a libel upon the House of Commons. Lambert & Perry [1793], 22 St. Tr. 953.

A prosecution was also instituted in R. v. 990, ante, p. 311.

Reeves [1796], in consequence of a reso- {g) R. !>. Sullivan, 11 Cox, 50, 54, Fitz^

lution of the House of Commons, declaring gerald, J.

a pamphlet, published by the defendant, (h) 1 Hawk. c. 73, s. 7. Bac. Abr. tit.

to be a libel. In the pamphlet, which ' Libel ' (A) 2. R. v. Franklin, 17 St. Tr,

was called ' Thoughts on the English 626.

Government,' there was this passage (i) R. v. Lovett, 9 0. & P. 462, LittlO'

amongst others which the House deemed dale, J.
libellous — ' That the King's government

CHAP. I.] Of Publications against the Government. 315

According to certain rulings, it is seditious to publish any matter
tending to possess the people with an ill opinion of the government. In
R. V. Tuchin (j), Holt, C.J., said: 'This is a very strange doctrine to say
that it is not a libel reflecting on the government, endeavouring to possess
the people that the government is maladministered by corrupt persons
that are employed in such stations, either in the navy or army. To say
that corrupt officers are appointed to administer affairs is certainly a
reflection on the government. If men should not be called to account
for possessing the people with an ill opinion of the government, no govern-
ment can subsist ; nothing can be worse to any government than to
endeavour to procure animosities as to the management of it ; this has
always been looked upon as a crime, and no government can be safe
unless it be punished ' (/).

This decision, if taken literally, is inconsistent with liberty of political
opinion (k). And in R. ■;;. Cobbett (I), where the defendant was charged
with publishing a libel upon the administration of the Irish government,
and upon the public conduct and character of the Lord Lieutenant and
Lord Chancellor of Ireland, EUenborough, C.J., in his address to the
jury, said: 'It is no new doctrine that if a publicati(m be calculated to
alienate the affections of the people, by bringing the government into
disesteem, whether the expedient be by ridicule or obloquy, the person
so conducting himself is exposed to the inflictions of the law. It is a
crime ; it has ever been considered as a crime, whether wrapt in one
form or another. The case of R. v. Tuchin, decided in the time of Lord
Chief Justice Holt, has removed all ambiguity from this question ; and,
although at the period when that case was decided great political conten-
tions existed, the matter was not again brought before the judges of the
Court by any application for a new trial.' And afterwards his Lordship
said : ' It has been observed, that it is the right of the British subject
to exhibit the folly or imbecility of the members of the government.
But, gentlemen, we must confine ourselves within limits. If in so doing
individual feelings are violated, there the line of interdiction begins,
and the offence becomes the subject of penal visitation.'

(?) [1704] 14 St. Tr. 1095; oas. temp. 114,115. And see 2 Starkie on Libel, 193,

Holt, 424. where see in the note other oases referred

(Ic) See Odgers on Libel {4th ed.), 486. to.
{I) [18041 29 St. Tr. 1 ; Holt on Libel,

( 316a )

CANADIAN NOTES.

OF SEDITION.

Definition. — Code sec. 132.

Seditious Intention. — Code sec. 133.

Punishment. — Code see. 134.

Publishing False News.- — Code sec. 136.

The publication of a placard stating that settlers from the United
States are not wanted in Canada is an injury to the public interest
and under sec. 136 of the Code the person wilfully and knowingly
publishing such false statement is properly convicted of spreading
false news. R. v. Hoaglin, 12 Can. Cr. Cas. 226.

(317)

CHAPTER THE SECOND.

OF WRONGFULLY OBTAINING OR DISCLOSING PUBLIC SECRETS.

The Official Secrets Act, 1889(a) (52 & 53 Vict. c. 52), deals with two
classes of offence: (1) what is called espionnage, in obtaining secret infor-
mation ; (2) breach of official trust by persons in the service of the State.
The Act provides as follows : —

Sect. 1. — ' (-1) (a.) Where a person for the purpose of wrongfully
obtaining information —

(i.) enters or is in any part of a place belonging to His Majesty
the King, being a fortress, arsenal, factory, dockyard, camp,
ship, office, or other like place, in which part he is not entitled
to be ; or
(ii.) when lawfully or unlawfully in any such place as afore-
said, either obtains any document, sketch, plan, model, or
knowledge of anything which he is not entitled to obtain, or
takes without lawful authority any sketch or plan ; or
(iii.) when outside any fortress, arsenal, factory, dockyard, or
camp belonging to His Majesty the King, takes or attempts
to take without authority given by or on behalf of His Majesty,
any sketch or plan of that fortress, arsenal, factory, dockyard,
or camp ; or
(b.) where a person knowingly having possession of, or control
over any such document, sketch, plan, model, or knowledge
as has been obtained or taken by means of any act which con-
stitutes an offence against this Act at any time wilfully and
without lawful authority communicates or attempts to com-
municate the same to any person to whom the same ought not,
in the interest of the State, to be communicated at that time ;
or
(c.) where a person after having been entrusted in confidence by
some officer under His Majesty the King with any document,
sketch, plan, model, or information relating to any such place
as aforesaid, or to the naval or military affairs of His Majesty,
wilfully and in breach of such confidence communicates the
same when, in the interest of the State, it ought not to be
communicated ;
he shall be guilty of a misdemeanor, and on conviction be liable to

(a) This Act was passed in consequence Guernsey, 1 P. & F. 394 ; 337 Hansard

of the communication to the Press by a Pari. Deb. 321. A bill to extend the

Government clerk of the secret clauses of application of the Act was introduced in

the Anglo-Russian agreement. See R. v. 1908, but was not passed.

318 Of Offences against the Security of the State. [Book hi.

imprisonment, with or without hard labour, for a term not exceeding one
year, or to a fine, or to both imprisonment and a fine.

' (2) Where a person having possession of any document, sketch,
plan, model, or information relating to any fortress, arsenal, factory,
dockyard, camp, ship, office, or other like place belonging to His Majesty,
or to any naval or military afiairs of His Majesty, in whatever manner
the same has been obtained or taken, at any time wilfully communicates
the same to any person to whom he knows the same ought not, in the
interest of the State, to be communicated at that time, he shall be guilty
of a misdemeanor, and be liable to the same punishment as if he com-
mitted an offence under the foregoing provisions of this section.

' (3) Where a person commits any act declared by this section to be
a misdemeanor, he shall, if he intended to communicate to a foreign
State any information, document, sketch, plan, model, or knowledge
obtained or taken by him, or entrusted to him as aforesaid, or if he
communicates the same to any agent of a foreign State, be guilty of
felony, and on conviction be liable at the discretion of the Court to
penal servitude for life, or for any term not less than five years (&), or
to imprisonment for any term not exceeding two years, with or without
hard labour.'

Breach of Official Trust. — By sect. 2, ' (1) Where a person by means
of his holding or having held an office under His Majesty the King, has
lawfully or unlawfully either obtained possession of or control over any
document, sketch, plan, or model, or acquired any information, and at any
time corruptly or contrary to his official duty communicates or attempts
to communicate that document, sketch, plan, model, or information to
any person to whom the same ought not, in the interests of the State,
otherwise in the public interest, to be communicated at that time, he
shall be guilty of a breach of official trust.

' (2) A person guilty of a breach of official trust shall —
{a.) if the communication was made or attempted to be made to
a foreign State, be guilty of felony, and on conviction be liable
at the discretion of the Court to penal servitude for life, or for
any term not less than five years" (6), or to imprisonment for any
term not exceeding two years, with or without hard labour ; and
(&.) in any other case be guilty of a misdemeanor, and on con-
viction be liable to imprisonment, with or without hard labour,
for a term not exceeding one year, or to a fine, or to both
imprisonment and a fine.
'(3) This section shall apply to a person holding a contract with
any department of the government of the United Kingdom, or with
the holder of any ofiice under His Majesty the King as such holder,
where such contract involves an obligation of secrecy, and to any per-
son employed by any person or body of persons holding such a con-
tract, who is under a like obligation of secrecy, as if the person holding
the contract and the person so employed were respectively holders of
an office under His Majesty the King.'

By sect. 3, ' Any person who incites or counsels, or attempts to

(6) Now not less than three years ; see 54 & 55 Vict. c. 69, s. 1, ante, p. 211.

CHAP. II.] Of Disclosing Official Secrets. 319

procure, another person to commit an offence under this Act, shall be
guilty of a misdemeanor, and on conviction be liable to the same punish-
ment as if he had committed the offence ' (Vide ante, Chapter V.).

By sect. 4, ' The expenses of the prosecution of a misdemeanor under
this Act shall be defrayed in like manner as in the case of a felony ' (c).

By sect. 5, ' If by any law made before or after the passing of this
Act by the legislature of any British possession provisions are made
which appear to His Majesty the King to be of the like effect as those
contained in this Act, His Majesty may, by Order in Council, suspend
the operation within such British possession of this Act, or of any part
thereof, so long as such law continues in force there, and no longer,
and such order shall have effect as if it were enacted in this Act :
Provided that the suspension of this Act, or of any part thereof, in
any British possession shall not extend to the holder of an office under
His Majesty the King who is not appointed to that office by the Govern-
ment of that possession.

'The expression " British possession" means any part of His Majesty's
dominions not within the United Kingdom ' [d) .

By sect. 6, ' (1) This Act shall apply to all acts made offences by
this Act when committed in any part of His Majesty's dominions or
when committed by British officers or subjects elsewhere.

'(2) An offence under this Act, if alleged to have been committed
out of the United Kingdom, may be inquired of, heard, and determined,
in any competent British Court in the place where the offence was
committed, or in His Majesty's High Court of Justice in England or the
Central Criminal Court, and the Criminal Jurisdiction Act, 1802 (42
Geo. ni. c. 85) (e), shall apply in like manner as if the offence were
mentioned in that Act, and the Central Criminal Court as well as the
High Court possessed the jurisdiction given by that Act to the Court of
King's Bench.

'(3) An offence under this Act shall not be tried by any Court of
general or quarter sessions, nor by the Sheriff Court in Scotland, nor
by any Court out of the United Kingdom which has not jurisdiction
to try crimes which involve the greatest punishment allowed by law ' (/).

By sect. 7, ' (1) A prosecution for an offence against this Act shall
not be instituted except by or with the consent of the Attorney-General.

' (2) In this section the expression " Attorney-General " means the
Attorney or Solicitor General for England ; and as respects Scotland,
means the Lord Advocate ; and as respects Ireland, means the Attor-
ney or Solicitor General for Ireland ; and if the prosecution is instituted
in any Court out of the United Kingdom, means the person who in
that Court is Attorney-General, or exercises the like functions as the
Attorney-General in England.'

By sect. 8, ' In this Act, unless the context otherwise requires —

'Any reference to a place belonging to His Majesty the King includes
a place belonging to any department of the Government of the United

8 Bdw. VII. 0. 15, s. 9, post, Bk. xii. c. v. (/) Subs. 4 excludes the application of

(d) Orders in Council were made in 1890 the Criminal Law and Procedure (Ireland)
as to Jersey and the Isle of Man. Act, 1887 (50 & 51 Vict. o. 20).

320 Of Offences against the Security of the State, [book in.

Kingdom or of any of His Majesty's possessions, whether the place is or
is not actually vested in His Majesty ;

' Expressions referring to communications include any communica-
tion, whether in whole or in part, and whether the document, sketch
plan, model, or information itself or the substance or efiect thereof
only be communicated ;

' The expression " document " includes part of a document ;
' The expression " model " includes design, pattern, and specimen ;
' The expression " sketch " includes any photograph or other mode of
representation of any place or thing ;

' The expression " office under His Majesty the King " includes any
office or employment in or under any department of the Government
of the United Kingdom, and so far as regards any document, sketch,
plan, model, or information relating to the naval or military affairs of
His Majesty, includes any office or employment in or under any de-
partment of the Government of any of His Majesty's possessions.'

By sect. 9, ' This Act shall not exempt any person from any pro-
ceeding for an ofEence which is punishable at common law, or by military
or naval law, or under any Act of Parliament other than this Act, so,
however, that no person be punished twice for the same offence ' (g).

The Census Act, 1900 (63 & 64 Vict. c. 4), and the Census (Inland)
Act, 1900 (63 & 64 Vict. c. 6), each contain the following clause (h) —
' If any person employed in taking the census communicates
without lawfui authority any information acquired in the course
of his employment, he shall be guilty of a breach of official trust
within the meaning of the Official Secrets Act, 1889 (i), and that
Act shall apply accordingly.'
There are few recorded instances of prosecution under the Act of
1889 (j).

(g) Cf. Interpretation Act, 1889, a. 33, (j) See R. v. Stuart, 63 J.P. 712, an

ante, p. 4. indictment for inciting to disclose official

(h) c. 4, s. 11 (3) : c. 5, b. 7 (3). secrets.
(»■) In s. 2, ante, p. 318.

( 320a )

CANADIAN NOTES.

Wrongfully Obtaining or Publishing Public Secrets. — Code see. 85.
Breach of Official Trust — Code sec. 86.
Prosecution. — Code sec. 592.

(321 )

CHAPTER THE THIRD.

OP SEDUCING SOLDIBBS AND SAILORS TO MUTINY.

The Incitement to Mutiny Act, 1797 (37 Geo. III. c. 70), was passed in
consequence of the attempts of evil-disposed persons, by the publication
of written or printed papers, and by malicious and advised speaking,
to seduce soldiers and sailors from their duty and allegiance to the Crown.
It enacts (sect. 1) that ' any person who shall maliciously and advisedly
endeavour to seduce any person or persons serving in His Majesty's forces
by sea or land, from his or their duty and allegiance to His Majesty, or
to incite or stir up any suchperson or persons to commit any act of mutiny,
or to make or endeavour to make any mutinous assembly, or to commit
any traitorous or mutinous practice whatsoever, shall, on being legally
convicted of such offence, be adjudged guilty of felony . . .'{a). By sect. 3,
' any person who shall be tried and acquitted or convicted of any offence
against this Act shall not be liable to be indicted, prosecuted or tried
again for the same offence or fact as high treason or misprision of high
treason; and thatnothing in this Act contained shallbe construed to extend
to prevent any persons guilty of any offence against the Act, and who
shall not be tried for the same as an offence against this Act from being
tried for the same as high treason, or misprision of high treason, in such
manner as if this Act had not been made ' (&). By sect. 2, ' any offence
committed against this Act, whether committed on the high seas or within
that part of Great Britain called England, shall, and may, be prosecuted
and tried before any Court of Oyer and Terminer, or Gaol Delivery, for
any county in that part of Great Britain called England (c), in such
manner and form as if the said offence had been therein committed ' (d).

The Punishment of Offences Act, 1837 (7 Will. IV. & 1 Vict. c. 91), s. 1,
after reciting the above Act, provides that ' if any person shall ' (after
the 1st of October, 1837) ' be convicted of any of the offences herein-
before mentioned, such person shall not suffer death, or have sentence
of death awarded against him or her for the same, but shall be
liable ... to be transported (e) beyond the seas for the term of the
natural life of such person. . . . Mutiny appears to mean ' collective
insubordination ' (/).

A sailor in a sick hospital, where he had been for thirty days, and

(a) For present punisliment, vide infra. Vict. c. 69, s. 1, ante, pp. 211, 212). Other

(6) Vide ante, p. i. provisions of 7 Will. IV. and 1 Vict. c. 91, as

(d) Vide ante, p. 31. to imprisonment, hard labour and solitary

(e) Now penal servitude for life or not confinement, are superseded and repealed,
less than three years, or imprisonment with (/) See Manual of Military Law (ed.
or without hard labour for not more than 1903), p. 20.

two years (20 & 21 Vict. c. 3, s. 2 ; 54 & 55

VOL. I. Y

322 Of Offences against the Security of tie State, [book lii.

who therefore was not entitled to pay, nor liable for what he then did to
answer before a court-martial, is nevertheless a person serving in Mis
Majesty's forces by sea within this statute, so as to make the seducing him
an offence within its provisions {g).

An indictment upon this statute need not set out the means used tor
seducing the soldier from his duty and aUegiance ; and it need not aver
that the prisoner knew the person endeavoured to be seduced to be a
soldier. It seems also that a double act, namely, that the prisoner
endeavoured to incite a soldier to commit mutiny, and also to commit
traitorous and mutinous practices, may be charged in one count of the
indictment Qi).

The Act of 1797 mainly concerns civilians. Mutiny, &c., by persons
in the army or navv is punished under other Acts.

By the Naval DiscipHne Act, 1866 (29 & 30 Vict. c. 109), it is made a
capital offence (i.) for persons subject to the Act to join in mutiny with
violence, or treacherously to fail to do his best to suppress such mutiny
(sect. 10) or to be ringleader in mutiny (sect. 11) without violence ; (ii.)
for any person on board a King's ship whether otherwise subject to
the Act or not, to endeavour to seduce from his aUegiance to His
Majesty any person subject to the Act (sects. 12-13) ; (iii.) for any person,
subject to the Act, to endeavour to incite any other person, subject
to the Act, to commit any act of mutiny (sect. 12).

The punishment of penal servitude may be awarded^

(1) For failing from cowardice to use utmost effects to suppress

mutiny with violence (sect. 10).

(2) To join in any mutiny without violence, or to fail to do their

utmost to support it (sect. 11).

(3) To make, or endeavour to make, a mutinous assembly (sect. 14).

(4) Wilfully to conceal any traitorous or mutinous practice (sect. 15).
By sect. 7 of the Army Act {i), persons subject to military law {j),

who cause, or conspire to cause, mutiny in any forces belonging to the
regular, reserve, or auxihary forces, or navy, are liable on conviction by
court-martial to suffer death {k).

(7) R. V. Tiemey [1804], R. & R. 74. (ed. 1903).

(h) K. 0. FuUer, 2 Leach, 790 ; 1 East, (k) Sect. 153. Persons inducing soldiers

P. C. 92 ; 1 B. & P. 180. to desert are liable to summary conviction.

(i) 44 & 45 Vict. c. 68, continued See also 45 & 46 Vict. c. 49, s. 25 (militia) ;

annually by the Army Annual Act. 45 & 46 Vict. u. 48, s. 17 (reserve forces) ;

(j) See Official Manual o£ Military Law 7 Edw. VII. c. 9, s. 28 (territorial forces).

( 322a )

CANADIAN NOTES.

Of Seducing Soldiers and Sailors to Mutiny. — Code sec. 81.

Indictment. — Overt acts must be stated. Code sec. 847. The
Court may not amend so as to add to the overt acts stated. Code see.
847(2).

Evidence. — None shall be admitted of overt acts not stated in the
indictment. Code sec. 847.

( 323 )

CHAPTBE THE FOUETH.

OF AIDING THE ESCAPE OF PRISONERS OF WAR (a).

The Prisoners of War Escape Act, 1812 (52 Geo. III. c. 156), enacts,
sect. 1, that ' every person who shall (after 29 July, 1812) knowingly and
wilfully aid or assist any alien enemy of His Majesty, being a prisoner of
war in His Majesty's dominions, whether such prisoner shall be confined
as a prisoner of war in any prison or other place of confinement, or shall be
suffered to be at large in His Majesty's dominions or any part thereof on
his parole, to escape from such prison or other place of confinement, or
from His Majesty's dominions, if at large upon parole, shall upon being
convicted thereof be adjudged guilty of felony, and be liable to be trans-
ported as a felon for life, or for such term of fourteen or seven years as
the Court before whom such person shall be convicted shall adjudge ' (b).

Sect. 2. ' Provided always that . . . every person who shall knowingly
and wilfully aid or assist any such prisoner at large on parole in quitting
any part of His Majesty's dominions where he may be on his parole,
although he shall not aid or assist such person in quitting the coast
of any part of His Majesty's dominions, shall be deemed guilty of aiding
the escape of such person under the provisions of this Act.'

Sect. 3. ' If any person or persons owing allegiance to His Majesty,
after any such prisoner as aforesaid hath quitted the coast of any part
of His Majesty's dominions in such his escape as aforesaid, shall know-
ingly and wilfully upon the high seas aid or assist such prisoner in his
escape to or towards any other dominions or place, such person shall
also be adjudged guilty of felony, and be liable to be transported as afore-
said ; ' and such offences committed upon the high seas, and not within
the body of any county, may be tried in any county within the realm (c).
Before this Act, upon an indictment for misdemeanor in unlawfully aiding
and assisting a prisoner at war to escape, where it appeared that such
prisoner was acting in concert with those under whose charge he was
placed, in order to effect the detection of the defendant, who was supposed
to have been instrumental in the escapes of other prisoners, and the
prisoner in question neither escaped nor intended to escape : it was held
that the offence was not complete, and that a conviction for such offence
was therefore wrong (d).

{a) This subject was in the last edition might have been if the Act had not been

classified with offences against justice. passed ; but no person prosecuted other-

(6) Now penal servitude for life or for wise than under the provisions of the Act

not less than three years, or imprisonment is to be liable to be prosecuted for the same

with or without hard labour for not over offence imder the Act ; and no person

two years {vide ante, pp. 211, 212). As to prosecuted under the Act is, for the same

punishment of accessories, vide ante, p. 130. offence, to be otherwise prosecuted : vide

offenders from being prosecuted, as they (d) E. v. Martin [1811], R. & R. 196.

( 324a )

CANADIAN NOTES.
Of Aiding Escape of Prisoners of War. — Code sec. 186.

( 325 )

CHAPTER THE FIFTH.

OF UNLAWFUL OATHS, COMBINATIONS, AND CONFEDERACIES.

Sect. I. — Of Voluntary Oaths.

This section would perhaps be more properly associated with official
misconduct, but is here included as being of use for comparison with
the subsequent sections relating to ' unlawful oaths.'

Voluntary Oaths. — Coke says (3 Inst. 165) : ' oaths that have no
warrant by law are rather nova tormenta quam sacramenta : and it is a
high contempt to minister an oath without warrant of law, to be punished
by fine and imprisonment.' In Bramat v. Fire Insurance Co. (a),
Kenyon, C.J., said : ' he did not know but that a magistrate subjects
himself to a criminal information by taking a voluntary extra-judicial
affidavit.' In R. v. Eadon (6), in speaking of the Unlawful Oaths Act,
1797, Le Blanc, J., said : ' That which always was before a crime or
misdemeanor, the administering even an idle oath by a person not
having authority to administer an oath, was by that Act made more
penal.'

The Statutory Declarations Act, 1835 (5 & 6 Will. IV c. 62), s. 13, after
reciting that ' a practice has prevailed of administering and receiving
oaths and affidavits voluntarily taken and made in matters not the
subject of any judicial inquiry, nor in anywise pending or at issue before
the justice of the peace, or other person by whom such oaths or affidavits
have been administered or received,' and that ' doubts have arisen
whether or not such proceeding is illegal, for the more effectual suppression
of such practice and removing such doubts,' enacts, ' that from and after
the commencement of this Act, it shall not be lawful for any justice of
the peace or other person to administer, or cause or allow to be adminis-
tered, or to receive or cause or allow to be received, any oath, affidavit,
or solemn affirmation touching any matter or thing whereof such justice
or other person hath not jurisdiction or cognizance by some statute in
force at the time being : provided always, that nothing herein contained
shall be construed to extend to any oath, affidavit, or solemn affirmation
before any justice in any matter or thing touching the preservation of
the peace, or the prosecution, trial, or punishment of offences, or touch-
ing any proceedings before either of the Houses of Parliament, or any
committee thereof respectively, nor to any oath, affidavit, or affirmation

{a) [1800] K.B. Burn's Justice, by Oiet- 137, and R. v. Edgar, 33 St. Tr. 151n.
wynd, vol. iii. 529. And see 4 Bl. Com. (6) [1813] 31 St. Tr. 1069.

326 Of Offences against the Security of the State, [book ill.

which may be required by the laws of any foreign country to give validity
to instruments in writing designed to be used in such foreign countries
respectively ' (c).

The first count of an indictment upon the above enactment charged
that the defendant, being a justice of the peace, did unlawfully administer
to and receive from J. H. a certain voluntary oath touching certain
matters and things whereof- the defendant had not jurisdiction or cognis-
ance by any statute. The second and third counts slightly varied, and
the fourth count negatived the proviso in sect. 13. There were other
counts charging the defendant with administering oaths to two other
persons. The defendant had made a complaint to the bishop against
two clergymen. The defendant obtained statements from the three
persons mentioned in the indictment, and swore them before himself,
as a justice of the peace, to the truth of the statements. It appeared
that the defendant was ignorant of the statute rendering the adminis-
tering voluntary oaths illegal. It was contended that the enacting part of
the statute must be construed with reference to the preamble. Coleridge,
J., in summing up, said, he was of opinion that the enacting part
of the statute was not governed by the preamble ; that he considered
the enacting part of the section and the proviso preserved to justices
of the peace all the jurisdiction they had, as well at the common law as
by statute, to administer oaths ; and that the inquiry before the bishop
was clearly a matter in respect of which the defendant had no juris-
diction, either at common law or by statute. He directed the jury,
that, if they were satisfied the defendant did administer the oaths, they
should find him guilty. The jury found the defendant ' guilty of inadver-
tently administering an oath or oaths ' ; and Coleridge, J., held that that
was a verdict of guilty {d). But the judgment was afterwards arrested
by the Court of Queen's Bench upon the ground that the indictment was
bad since it did not in any count shew what the nature of the oath was.
There ought to have been a distinct allegation of the subject-matter of
the oath, shewing afiirmatively that it was out of the jurisdiction of the
magistrate. The question was matter of law for the Court, and though,
in the opinion of the majority of the Court, it was not necessary to set
out the whole of the oath (e), still the facts should have been so stated
as to enable the Court to form its opinion upon the question whether
the oath was within the jurisdiction of the magistrate or not.

The indictment in this case could be justified as being for a wilful

(c) As to when a justice may administer terms create an ofEence, all persons are
an oath outside the. county, &c., for which bound to know it. But if a statute enacts •
he is commissioned, see Paley (8th ed.), something, without in terms making it an
18-24. A distinction seems to be drawn offence, and you would convict a person of
between voluntary or ministerial and co- misdemeanor in having disobeyed such an
ercive or judicial proceedings. 2 Hawk. enactment, are you not bound to shew that
c. 47 ; 2 Hale, 51. Helier v. Hundred of the disobedience was wilful, and in the
Benhorse, Cro. Car. 211 ; W. Jones, 239. nature of a contempt ? ' But no opinion
And see R. v. AU Saints, Southampton, was pronounced on this point.

7 B. & C. 788. Bosanquet v. Woodford, (c) The Acts of 1797 and 1812 contain

5 Q.B. 310. express provisions on this point (see post,

(d) R. V. Nott, 4 Q.B. 768. It was p. 330). It would therefore be prudent to
argued that the defendant on the finding set out the whole oath, if practicable, in
of the jury had been guilty of no offence. some counts.

Denman, C. J., said : ' If the statute in

CHAP, v.] Administering and Taking Unlawful Oaths. 327

disobedience of the cominand of a statute as a matter of public
concern (/).

Sect. II. — Oaths to Commit Treason, Felony, &o.

The Unlawful Oaths Act, 1797 (37 Geo. III. c. 123), recites that
' wicked and evil disposed persons have of late attempted to seduce
persons serving in His Majesty's forces by sea and land and others of His
Majesty's subjects from their duty and allegiance to His Majesty, and to
incite them to acts of mutiny (g) and sedition, and have endeavoured to
give eSect to their wicked and traitorous proceedings by imposing upon
the persons whom they have attempted to seduce the pretended obligation
of oaths unlawfully administered ' (h). From this preamble it appears
as if the statute were mainly directed against combinations for purposes
of mutiny (h) and sedition : but in the enacting part, after dealing with
offences of that description, it goes on in much more extensive terms, and
embraces other more general objects. Sect. 1 enacts, ' that any person
or persons who shall in any manner or form whatsoever administer or
cause to be administered, or be aiding or assisting at, or present at and
consenting to, the administering or taking of any oath or engagement,
purporting or intended to bind the person taking the same to engage
in any mutinous or seditious purpose ; or to disturb the public peace,
or to be of any association, society or confederacy formed for any such
purpose, or to obey the orders or commands of any committee or body
of men not lawfully constituted, or of any leader or commander or other
person not having authority by law for that purpose, or not to inform
or give evidence against any associate, confederate or other person,
or not to reveal or discover any unlawful combination or confederacy, or
not to reveal or discover any illegal act done or to be done, or not to
reveal or discover any illegal oath or engagement which may have been
administered or tendered to or taken by such person or persons or to
or by any other person or persons, or the import of any such oath or
engagement, shall on conviction thereof by due course of law be adjudged
guilty of felony, and may be transported for any term of years not
exceeding seven (i) years ; and every person who shall take any such oath
or engagement, not being compelled thereto, shall on conviction thereof
by due course of law be adjudged guilty of felony, and may be transported
for any term of years not exceeding seven (i) years.'

The question was raised whether this Act applied to the unlawful
administering of an oath by an associated body of men to a person,
purporting to bind him not to reveal or discover an unlawful combination
or conspiracy of persons, nor any illegal act done by them (/), the object
of the association being a conspiracy to raise wages and make regulations
in a certain trade, and not to stir up mutiny or sedition. It was contended

(/) E. V. Price, 11 A. & E. 727, 738, imprisonment with or without hard labour

Denmau, C. J., vide ante, p. 12. for not more than two years (54 & 55 Vict.

(g) Vide 37 Geo. III. c. 70, ante, p. 321. ^. 69, 8. 1, ante, pp. 211, 212).

(A) The recitals in the preamble refer to (j) The oath was, ' You shall be true to

the mutinies at Spithead and the Nore in every journeyman shearman, and not to

1797. See Annual Register, 1797, p. 209. hurt any of them, and you shall not divulge

{«■) Now penal servitude for not more any of their secrets ; so help you God.'
than seven nor less than three years or

328 Of Offences against the Security of the State, [book iil

that the words of the statute, however large in themselves, must be
confined to the object stated in the preamble ; and could not have been
intended to reach a case where it was plain that the fact arose entirely
out of a private dispute between persons engaged in the same trade, and
was confined in its object to that alone ; and that the general words
therefore must be construed with relation to the antecedent offences,
which are confined in their objects to mutiny and sedition. But the
Court, though they did not upon the particular circumstances feel them-
selves called upon to give an express decision, appear to have entertained
no doubt but that the case was within the statute (k).

Sixteen persons, with their faces blackened, met at a house at night,
having guns with them, and intending to go out for the purpose of night
poaching, and were all sworn not to betray their companions. It was
objected that this oath was not within the statute, as it was not for a
mutinous or seditious object, and that the statute only prohibited those
oaths of secrecy which related to some illegal act, and that the word
' illegal ' imported a criminal act, and not a mere civil trespass, whereas
it was a mere civil trespass which was contemplated at the time when
the oath was administered. It was held that the oath was within the
statute ; and as to the assembly itself, and its object, it was impossible
that a meeting to go out with faces thus disguised, at night, and under
such circumstances, could be other than an unlawful assembly : in which
case, the oath to keep it secret was an oath prohibited by the statute (l).
An oath administered to the members of a trades' union, binding
them not to make buttons for less than the lodge prices, and not to
divulge the secrets of the lodge, was held to be an oath within the statute ;
because to administer an oath or engagement not to reveal the secrets
of any association is within the Act of 1797, as explained by subsequent
statutes, not because it had reference to any matter respecting wages,
but on the ground that every association of that kind, bound together
by an oath, not to disclose the proceedings of that society, was for that
reason an unlawful combination within the statutes (m).

An oath not to reveal what they saw or heard administered by members
of an association, formed for the purpose of raising wages by a general
strike on the part of its members, and for other purposes in furtherance
of that design, was held to be within the Act of 1797 (n).

In E. V. Eadon (o), the prisoner was indicted under the Act of 1797
for administering to R. H. an oath taken by E. H. and intended to bind
him to be of an association, society, and confederacy formed to disturb
the public peace. The second count stated the oath to be intended
to bind R. H. not to give evidence against any associate or confederate
in such association. In other counts the word ' engagement ' was

(Jc) R. V. Marks, 3 East, 157. Lawrence, the law.'

J., said : ' It is true that the preamble and (I) R. v. Brodribb, 6 C. & P. 571, Hol-

the first part of the enacting clause are royd, J.

confined in their objects to cases of mutiny (m) R. v. Ball, 6 C. & P. 563, WiUiams, J.

and sedition ; but it is nothing unusual in (n) R. v. Lovelass, 1 M. & Rob. 349,

Acta of Parliament for the enacting part to Williams, J. See R. v. Dixon, 6 C. & P.

go beyond the preamble ; the remedy often 601, Bosanquet, J.

extends beyond the particular act or mis- (o) [1813] 31 St. Tr. 1064.
chief which first suggests the necessity of

CHAP, v.] Administering and Taking Unlawful Oaths. 329

substituted for ' oath.' The oath or engagement in question related to
the Luddites, an organisation arising out of disputes in the stocking and
lace trades, which broke the new machinery then coming into use in the
stocking, lace, cotton, and woollen manufactures, and committed other
acts of violence and destruction.

The evidence (p) proved the administering and taking of the oath, and
the only question was whether E. H. took it in joke or in earnest. Le
Blanc, J., ruled that if it was proved that the prisoner administered
the oath without any mental reservation, and with the intention that it
should be obligatory, the prisoner would be guilty, even if R. H. had
merely taken the oath for the purpose of deluding the prisoner, and
without meaning to bind his conscience {q).

The Unlawful Oaths Act, 1812 (52 Geo. III. c. 104), passed to render
the Act of 1797 more effectual in respect to oaths of a particular nature,
enacts (sect. 1), that 'every person, who shall in any manner or form what-
soever administer or cause to be administered, or be aiding or assisting
at the administering of any oath or engagement, purporting or intend-
ing to bind the person taking the same to commit any treason (r) or
murder, or any felony punishable by law with death, shall on convic-
tion thereof by due course of law, be adjudged guilty of felony . . . (s),
and every person who shall take any such oath or engagement, not
being compelled thereto, shall, on conviction thereof by due course of
law, be adjudged guilty of felony, and shall be transported as a felon for
the term of his natural life {t), or for such term of years as the Court before
which the said offender or offenders shall be tried shall adjudge.'

Persons taking the oaths mentioned in either of these Acts by com-
pulsion must make a full disclosure of the fact, and the circumstances
attending it, within a limited time, in order to be justified or excused.
The Act of 1797 (sect. 2) enacts, that ' compulsion shall not justify or
excuse any person taking such oath or engagement, unless he or she shall,
within four days after the taking thereof, if not prevented by actual
force or sickness, and then within four days after the hindrance produced
by such force or sickness shall cease, declare the same, together with the
whole of what he or she shall know touching the same, and the person or
persons by whom and in whose presence and when and where such
oath or engagement was administered or taken, by information on oath
before one of His Majesty's justices of the peace or one of His Majesty's
principal secretaries of state or His Majesty's privy council, or in case
the person taking such oath or engagement shaU be in actual service in
His Majesty's forces by sea or land, then by such information on oath as
aforesaid, or by information to his commanding officer.' The Act of 1812

(p) Ibid. pp. 1068, 1073. 1837 by 7 WiU. IV. & 1 Vict. c. 91, s. 1.

(q) See abo E. u. Baines [1813], 31 St. The punisbment is now penal servitude for

Tr. 1074. life, or for not lesa than three years, or im-

(r) See R. v. Edgar [1817], 33 St. Tr. 145. prisonment, with or without hard labour,

B. V. M'Kinley [1817], 33 St. Tr. 275 ; for for not more than two years (7 WiU. IV.

trials in Scotland under this Act for ad- & 1 Vict. c. 91, s. 2 ; 54 & 55 Vict. c. 69,

ministering oaths to commit treason. The s. 1 (1), (2), ante, pp. 211, 212).
oaths were in aid of a combination for adult (t) Now penal servitude for not more

male suffrage and annual Parliaments. than seven nor less than three years, or

(s) The punishment of death originally imprisonment (54 & 55 Vict. c. 69, B. 1 (1),

imposed for this offence was abolished in (2), ante, pp. 211, 212).

330 Of Offences against the Security of the State, [book hi.

(sect. 2) contains a similar enactment as to oaths or engagements within
that Act, except that the words 'fourteen days ' are substituted for
' four days.'

By sect. 5 of the Act of 1797, ' any engagement or obligation whatso-
ever in the nature of an oath,' and by sect. 6 of the Act of 1812, any
engagement or obligation whatsoever in the nature of an oath purporting
or intending to bind the person taking the same to commit any treason
or murder, or any felony punishable by law with death, ' shall be deemed
an oath within the intent and meaning of ' those Acts, ' in whatever
form or manner the same shall be administered or taken : and whether
the same shall be actually administered by ariy person or persons to
any other person or persons, or taken by any person or persons without
any administration thereof by any other person or persons.'

If the oath administered was intended to make the party believe
himself under an engagement, it is equally within the Acts, whether
the book made use of be a testament or not (m). So the precise form
of the oath is immaterial ; it is an oath within the meaning of the Acts,
if it was understood by the party tendering, and by the party taking
it, as having the force and obligation of an oath (v).

Accessories, Aiders and Abettors. — The Act of 1797 enacts (sect. 3),
that persons aiding and assisting at, or present and consenting to, the
administering or taking of any oath or engagement before mentioned in
that Act ; and persons causing any such oath or engagement to be ad-
ministered or taken, though not present at the administering or taking
thereof, shall be deemed principal offenders, and tried as such; although the
person or persons who actually administered such oath or engagement,
if any such there shall be, shall not have been tried or convicted. By the
Act of 1812 (sect. 4), 'persons aiding and assisting at the administration of
any such oath or engagement as aforesaid, and persons causing any such
oath or engagement to be administered, though not present at the ad-
ministering thereof, shall be deemed principal offenders, and on convic-
tion thereof by due course of law shall be adjudged guilty of felony . . . (w)
although the persons or person who actually administered such oath or
engagement, if any such there shall be, shall not have been tried or
convicted ' (x).

Both statutes provide that it shall not be necessary to set forth in the
indictment ' the words of the oath or engagement ; ' and that ' it shall
be sufficient to set forth the purport of such oath or engagement, or
some material part thereof ' (y). In an indictment on the Act of 1797,
the fourth count charged that the defendants administered to J. H.
an oath ' intended to bind him not to inform or give evidence against
any member of a certain society formed to disturb the public peace for
any act or expression of his or theirs done or made collectively or indivi-
dually, in or out of that or other similar societies, in pursuance of the

(m) R. v. Brodribb, 6 C. & P. 571, Hoi- IV. & 1 Vict. c. 91, a. 1. See note (s),

royd, J., where an account book, called ante, p. 329.

The Young Man's Best Companion, was (x) As to accessories, vide ante, pp. 104

used. et seq.

(v) B. V. Lovelass, 1 M. & Rob. 349, {«/) 37 Geo. III. o. 123, s. 4 ; 52 Geo. III.

Williams, J. c. 104, s. 5.

(w) Death penalty abolished by 7 Will.

CHAP, v.] Administering and Taking Unlawful Oaths. 331

spirit of that obligation'; and the eighth count stated the oath to be
' intended to bind the said J. H. not to give evidence against any associate
in certain associations and societies of persons formed for seditious
purposes ' ; and the other counts stated the objects of the oath ad-
ministered, and the objects of the society, differently and more generally
adapted to several prohibitory parts of the statute. Upon objection
taken at the trial to the generality of the statements in the indictment,
Lord Alvanley was of opinion that the Act intended that it should be
sufficient to allege and prove what the object of the oath- and engagement
was, without stating any words at all ; and that the offence being de-
scribed in the words of the Act, was well described ; but that supposing
the objection made to the generality of the counts was good, which he
did not admit, yet that in the fourth and eighth a material part of the
oath or engagement was set forth according to the terms of the Act.
The point was submitted to the judges, who, without giving any opinion
against the other counts, all agreed that the fourth and eighth counts
were good (2).

If the indictment states the oath to have been not to inform or give
evidence against any person belonging to a confederacy of persons
associated together to do ' a certain illegal act,' it is sufficient without
going on to state what the illegal act was : for the ofience is not the
illegal act, but the administration of the oath, which preceded it, and
all that the rules of pleading require is that the offence — that is the
oath itself — should be sufficiently described {a). Where an indictment
charged that the prisoner administered ' a certain oath ' to J. P. and
fifteen others, naming them, and it was proved that the sixteen were all
sworn in the same manner, on the same book, two or three at a time, at
the same meeting, it was held that this was sufficient, for it was the same
act of administering. Or it might be taken to be a complete transaction
with respect to each person sworn ; and the charge would be substantiated
by evidence of the prisoner having sworn any one of the party, in the
same way as a man may be convicted of larceny on proof of stealing one
out of several articles named in an indictment (&).

Where the witness, swearing to the words spoken by way of oath by
the prisoner when he administered it, said that he held a paper in his
hand at the time when he administered the oath, from which paper it
was supposed that he read the words ; it was held that parol evidence
of what he in fact said was sufficient, without giving him notice to pro-
duce such paper (c). And where the oath on the face of it did not purport
to be for a seditious purpose, though it was objected that no parol evi-
dence could be given to shew that the ' brotherhood ' mentioned in it was
of a seditious nature, it was held that declarations made at the time by
the party administering such oath were admissible to prove the real
object of it {d).

Both Acts provide that offences committed on the high seas, or out of
the realm, or in England, shall and may be prosecuted, tried, and deter-
mined before any Court of Oyer and Terminer or Gaol Delivery for any

(z) R. V. Moors, 6 East, 419, note (6). (6) Ibid.

(a) R. V. Brodribb, 6 C. & P. 571, Hoi- (c) R. v. Moors, 6 East, 421.

royd, J. • {d) Id. ibid.

332 Of Offences against the Security of the State. [BOOK ill.

county in England in such manner and form as if such offence had been
therein committed (e).

Both Acts also provide that ' any person who shall be tried and
acquitted or convicted of any offence against' the Acts, 'shall not be
liable to be prosecuted again for the same offence or fact as high treason,
or misprision of high treason ; and that nothing in the ' Acts ' contained
shall be construed to extend to prevent any person guilty of any offence
against ' the Acts, ' and who shall not be tried for the same as an offence
against ' the Acts, ' from being tried for the same, as high treason, or
misprision of high treason, in such manner as if ' those Acts ' had not
been made ' (/).

Neither Act extends to Ireland ; but very similar provisions are made
by the Unlawful Oaths (Ireland) Acts of 1810 (50 Geo. III. c. 102, ss. 1-4)
and 1823 (4 Geo. IV. c. 87).

Sect. III. — Of Combinations against Public Tranquillity
AND THE Government.

The offences included in this section are closely allied to treason and
sedition, but might also be described as conspiracies {ff), and the meetings
of the societies at which the statutes are aimed could be dealt with as
unlawful assemblies (</).

The Unlawful Societies Act, 1799 (39 Geo. III. c. 79) Qi), after
reciting that a traitorous conspiracy had long been carried on in
conjunction with the persons from time to time exercising the power
of government in France to overturn the laws, constitution, and
government, and every existing establishment, civil and ecclesiastical,
both in Great Britain and Ireland, and to dissolve the conjunction
of the two kingdoms, and that in pursuance of such design divers
societies had been instituted in this kingdom and in Ireland, of a new
and dangerous nature, inconsistent with public tranquillity and with
the existence of regular government, particularly certain societies calling
themselves ' Societies of United Englishmen, United Scotsmen, United
Britons, United Irishmen, and The London Corresponding Society,' and
that the members of many such societies had taken unlawful oaths and
engagements of fidelity and secrecy, &c., and that it was expedient
and necessary that aU such societies, and all societies of the like nature,
should be utterly suppressed and prohibited, as unlawful combinations
and confederacies, highly dangerous to the peace and tranquillity of these
kingdoms, and to the constitution of the government thereof, as by law

u. 104, s. 7. tions. But ss. 28, 29, 31, 34, 35 and 36 are

{ /) 37 Geo. III. 0. 123, s. 7 ; 52 Geo. III. re-enacted in the second schedule of 32 &

c. 104, s. 8. 33 Vict. c. 42. By 9 & 10 Vict. c. 33, s. 1,

(//) yid^ ante, pp. 146, et seq. also re-enacted in that schedule, ' No per-

' (g) See R. v. Ball, 6 C. & P. 563. R, v. son shall be prosecuted or sued for any

Dixon, 6 C. & P. 601. Cf. R. v. O'Connell, penalty imposed by the Act of 1799 unless

2 St. Tr. (N. S.) 629. such prosecution shall be commenced or

(h) Sec. 4, s. 11, from 'save' to the such action shall be brought within three

end of that section, and ss. 12 & 39 of this calendar months next after such penalty

Act were repealed in 1871 (34 & 35 Vict. shall have been incurred.' As to the re-

u. 116). The Act of 1799 was repealed in covery and appUcatiou of these penalties

part in 1869 (32 & 33 Vict. c. 24), viz., ss. 15 see the above schedule,
to 33, both inclusive, and so much of ss. 34

CHAP, v.] Unlawful Confederacies. 333

established, enacts (sect. 1), ' That all the said societies of United English-
men, United Scotsmen, United Irishmen, and United Britons, and the said
society commonly called the London Corresponding Society, and all other
societies called Corresponding Societies, of any other city, town, or place,
shall be, and the same are hereby utterly suppressed and prohibited, as
being unlawful combinations and confederacies against the government
of our sovereign lord the King, and against the peace and security of His
Majesty's hege subjects.'

Sect. 2. ' . . . All and every the said societies, and also every other
society now established or hereafter to be estabUshed, the members
whereof shall, according to the rules thereof or to any provision or
agreement for that purpose, be required or admitted to take any oath or
engagement which shall be an unlawful oath or engagement within
the intent or meaning of the Unlawful Oaths Act, 1797 {i), or to take
any oath not required nor authorised by law ; and every society the
members whereof or any of them shall take or in any manner bind
themselves by any such oath or engagement, on becoming or in con-
sequence of being members of such society ; and every society the
members whereof shall take, subscribe or assent" to any test or declara-
tion not required by law, or not authorised in manner hereinafter men-
tioned ; and every society of which the names of the members or any of
them shall be kept secret from the society at large, or which shall have
any committee or select body so chosen or appointed that the members
constituting the same shall not be known by the society at large to be
members of such committee or select body, or which shall have any
president, treasurer, secretary, delegate or other officer, so chosen or
appointed that the election or appointment of such persons to such offices
shall not be known to the society at large, or of which the names of all the
members and of all committees or select bodies of members and of all
presidents, treasurers, secretaries, delegates and other officers, shall not
be entered in a book or books to be kept for that ptlrpose, and to be open
to the inspection of all the members of such society ; and every society
which shall be composed of different divisions or branches, or of different
parts acting in any manner separately or distinct from each other, or
of which any part shall have any separate or distinct president, secre-
tary, treasurer, delegate or other officer, elected or appointed by or for
such part, or to act as an officer for such part, shall be deemed and taken
to be unlawful combinations and confederacies (j) : every person who . . .
shall directly or indirectly maintain correspondence or intercourse with
any such society, or with any division, branch, committee, or other select
body, president, treasurer, secretary, delegate or other officer, or member
thereof as such, or who shall, by contribution of money or otherwise, aid,
abet or support such society, or any members or officers thereof as such,
shall be deemed guilty of an unlawful combination and confederacy.'

By sect. 13, ' ... If any person shall knowingly permit any meeting of
any society hereby declared to be an unlawful combination or confederacy,

(i) 37 Geo. III. 0. 123, ante, p. 327. purposes of a religious or charitable nature

(?) By s. 27 of the Act of 1817, this enact- only, and in which no other matter shall be

ment is not to extend to meetings of discussed.

Quakers, or to any meeting or society for

334 Of Offences against the Security of the State, [book hi.

or of any division, branch or committee of such society, to be held in his
or her house or apartment, such person shall, for the first offence forfeit
the sum of £5, and shall, for any offence committed after the date of his
or her conviction for such first offence, be deemed guilty of an unlawful
combination or confederacy in breach of this Act.'

By sect. 8, ' Every person who . . . after the passing of this Act (July
12, 1799) shall, in breach of the provisions thereof, be guilty of any such
unlawful confederacy as in this Act is described, shall and may be
proceeded against ... by indictment to be preferred in the county,
riding, division, city, town, or place in England, wherever such offence
shall be committed . . . and every person convicted of any such offence
upon indictment in due course of law shall and may be transported
for the term of seven years in the manner provided by law for the trans-
portation of offenders, or imprisoned for any time not exceeding two
years, as the Court before whom such offender shall be tried shall think
fit ... ' (k).

The Act of 1799 does not extend to declarations approved by two
justices, and registered with the clerk of the peace ; but such approba-
tion shall only remain valid till the next general session, unless the same
shall be confirmed by the major part of the justices at such general
session (?). And it does not extend to the meetings of societies, or lodges
of Freemasons, which, before the passing of the Act, had been usually
held, under the denomination of ' Lodges of Freemasons,' and in con-
formity to the rules prevailing among such societies (m) ; provided that
there be a certificate of two of the members upon oath, that such society
or lodge had been usually held under such denomination, and in con-
formity to such rules ; the certificate duly attested, &c., being, within
two months after the passing of the Act, deposited with the clerk of the
peace, with whom also the name or denomination of the society or lodge,
and the usual place and time of meeting, and the names and descriptions
of the members are to be registered yearly (w). The clerk of the peace
is required to enrol such certificate and registry, and to lay the same
once in every year before the general session of the justices ; and the
justices may, upon complaint upon oath, that the continuance of the
meetings of any such lodge or society is likely to be injurious to the public
peace and good order, direct them to be discontinued ; and any such
meeting, held notwithstanding such order of discontinuance, and before
the same shall, by the like authority, be revoked, shall be deemed an
unlawful combination and confederacy under the provisions of the Act (o).

(/f) The omitted portions relate to sum- the Unlawful Societies Act, 1799, or of the

mary convictions on which the justices Seditious Meetings Act, 1817, if in the

may mitigate the maximum punishment — society or branch or at the meeting no

three months' imprisonment or a fine of business is transacted other than that

£20. S. 9. which directly and immediately relates to

(I) S. i was repealed in 1871 (34 & 35 the objects of the society or branch as

Vict. c. 116. S. L. R.). declared in the registered rules thereof, but

(m) S. 5. the society or branch and all officers thereof

(n) S. 6. shall on request in writing by two justices

(o) S. 7. By the Friendly Societies Act, of the peace give to such justices full infor-

1896 (59 & 60 Vict. c. 25), s. 32 (1), ' a regis- mation of the nature, objects, proceedings

tered friendly society or branch or a meeting and practices of the society or branch.

of a registered society or branch shall not (2) If the society or branch when so

be affected by any of the provisions of required fails to give such information as

CHAP, v.] Unlawful Confederacies. 335

By sect. 10 it is provided, that any person who shall be convicted
or acquitted by any justice, upon a summary prosecution, shall not after-
wards be prosecuted by indictment, or otherwise, for the same offence ;
and in like manner that any person convicted, or acquitted, upon an
indictment, shall not afterwards be prosecuted before any justice in a
summary way.

By sect. 11, the Act is not to ' extend to prevent any prosecution,
by indictment or otherwise for anything which shall be an offence within
the intent and meaning of this Act, and which might have been so pro-
secuted if the Act had not been made, unless the offender shall have been
prosecuted for such offence under the Act, and convicted or acquitted
of such offence ' (p).

By the Seditious Meetings Act, 1817 (57 Geo. III. c. 19), s. 25, ' All
and every [the said societies or clubs (q), and also all and every other]
society or club now established or hereafter to be established, the
members whereof shall be required or admitted to take any oath or
engagement which shall be an unlawful engagement within the meaning
of the Unlawful Oaths Act, 1797 (r), or within the meaning of the Un-
lawful Oaths Act, 1812 (s), or to take any oath not required or authorised
by law ; and every society or club, the members whereof, or any of them,
shall take or in any manner bind themselves by any such oath or engage-
ment on becoming or in order to become or in consequence of being a
member or members of such society or club ; and every society or club,
the members or any member whereof shall be required or admitted to
take, subscribe, or assent to, or shall take, subscribe, or assent to any
test or declaration not required or authorised by law, in whatever manner
or form such taking or assenting shall be performed, whether by words,
signs, or otherwise, either on becoming or in order to become or in con-
sequence of being a member or members of any such society or club ;
and every society or club that shall elect, appoint, nominate, or employ
any committee, delegate or delegates, representative or representatives,
missionary or missionaries, to meet, confer, or communicate with any
other society, or club, or with any committee, delegate or delegates
representative or representatives, missionary or missionaries, of such
other society or club, or with any committee, &c., of such other
society or club, or to induce or persuade any person or persons to
become members thereof, shall be deemed and taken to be unlawful
combinations and confederacies, within the meaning of the Unlawful
Societies Act, 1799 (t), and shall and may be prosecuted, proceeded
against, and punished, according to the provisions of the said Act ; and
every person who, from and after the passing of this Act (March 31,
1817), shall become a member of any such society or club, or who, after
the passing of this Act, shall act as a member thereof, and every person
who, from and after the passing of this Act, shall directly or indirectly
maintain correspondence or intercourse with any such society or club,

aforesaid, the provisions of those Acts shall, (34 & 35 Viet. u. 116).

so far as applicable, be in force in respect of (g) The clubs meant were referred to in

the society or branch.' This enactment s. 24, which was repealed in 1890 (S. L. E.).

incorporates the substance of 38 & 39 Vict. (r) 37 Geo. III. c. 123, ante, p. 327.

c. 60, s. 15, and 39 & 40 Vict. u. 32, s. 6. (s) 52 Geo. III. c. 104, ante, p. 329.

(p) The rest of b. 11 was repealed in 1871 (t) 37 Geo. III. .;. 79, ante, pp. 332 et seq.

336 Of Offences against the Security of the State, [boor hi.

or with any committee or delegate, representative or missionary, or with
any officer or member thereof as such, or who shall, by contribution of
money or otherwise, aid, abet, or support such society or club, or any
members or officers thereof as such, shall be deemed guilty of an unlawful
combination and confederacy within the intent and meaning of the
Unlawful Societies Act, 1799, and shall and may be proceeded against,
prosecuted, and punished, according to the provisions of the said Act,
with regard to the prosecution and punishment of unlawful combinations
and confederacies ' (u).

By sect. 26, nothing contained in this Act is to extend to lodges of
Freemasons, complying with the regulations of the Unlawful Societies
Act, 1799 (v), nor to any declaration approved and subscribed by two
or more justices of the peace, and confirmed by the major part of the
justices at a general session, or at a general quarter sessions of the peace,
pursuant to the regulations in the Act of 1799 (v) ; nor to meetings of
Quakers ; nor ' to any meeting or society formed or assembled for
purposes of a religious or charitable nature only, and in which no other
matter or business whatsoever shall be treated of or discussed.'

By sect. 28, ' If any person shall knowingly permit any meeting of
any society or club hereby declared to be an unlawful combination
or confederacy, or of any division, branch, or committee of such society
or club, to be held in any house or apartment, building or other place,
to him or her belonging, or in his or her possession or occupation, such
person shall for the first offence forfeit the sum of £5 (w), and shall,
for any such offence committed after the date of his or her conviction
for such first offence, be deemed guilty of an unlawful combination and
confederacy in breach of this Act' [x).

By sect. 29, any two or more justices, upon evidence on oath that
any such meeting, or any meeting for any seditious purpose, has been
held at any house, &c., licensed for the sale of liquors, with the knowledge
and consent of the persons keeping such house, &c.; may adjudge the
licence to be forfeited («/).

By sect. 35, nothing contained in the Act ' shall be deemed to take
away, or abridge, any provision already made by the law of the realm,
or of any part thereof, for the suppression or punishment of any offence
whatsoever described in the Act ' [z).

By sect. 36, ' . . . No person who shall be prosecuted and convicted,
or acquitted, of any offence against this Act, shall be subject or liable
to be again prosecuted for the same offence . . . ' (a).

By sect. 37, where any proceeding or prosecution shall be instituted
for any offence against the Act of 1799 (6), or this Act, either by action
or information, before any justice or justices, or otherwise, the Attorney-

(u) Ante, p. 332. (x) 39 Geo. III. o. 79, s. 13 is nearly

(v) Ante, p. 332. similar.

(w) Ss. 30, 31 regulate the recovery (y) 39 Geo. III. c. 79, s. 14 does not con-

of fines, penalties or forfeitures. Those tain the words ' with the knowledge and

not exceeding £20 are recoverable in a consent of the person keeping such house.'

Court of Summary Jurisdiction. Ss. 32, (:) Vide ante, p. 4.

33 were repealed in 1893 (56 & 57 Vict. (a) Vide ante, p. 4.

0. 61). (b) Ante, p. 332.

CHAP, v.]

Unlawful Confederacies.

337

General in England, or the Lord-Advocate in Scotland, may order them
to be stayed ; and, in case of any judgment or conviction, one of His
Majesty's principal secretaries of state may, by an order under his hand,
stay the execution of such judgment or conviction, or mitigate, or remit,
any fine or forfeiture, or any part thereof (c).

The mutual promises and engagements of societies are lawful, unless
they are clearly prohibited by law ; and it lies on the party who alleges
that such promises and engagements are illegal to prove that they are so.
Where, therefore, it appeared from the rules of a lodge of Oddfellows
that the members entered into an engagement to abide by the rules,
and one of the rules was to keep the secrets of the society ; but all secrets
had been abolished ; and the rules had not been enrolled: Erie, J., held
that there was nothing to shew that the engagement was illegal ; the
subjects of this realm might enter into any engagement they pleased,
unless prohibited by law, and the party objecting to the legality of an
engagement must shew that it is illegal (d).

By 9 & 10 Vict. c. 33, it was enacted (sect. 1) that it should not be
lawful for any person or persons to commence, enter, prosecute, or file,
or cause or procure to be entered, prosecuted, or filed, any action, bill,
plaint, or information in any of Her Majesty's Courts, or before any
justice or justices of the peace, against any person for the recovery of
any fine or forfeiture under the Acts of 1799 and 1817, except in the name
of the Attorney-General or Solicitor-General in England (e).

(c) S. 38 (damage by riot) was re-
pealed as to England in 1827 (7 & 8 Geo.
IV. u. 27, s. 1). The Act doea not extend
to Ireland (s. 39). Many aeotions of 36 Geo.
III. c. 8, were intended to remedy the evil
occasioned by persons who, under pretence
of dehvering lectures and diacoursea on
public grievances, delivered lectures and
discourses, and held debates, tending to
stir up hatred and contempt of the King's
person and government, and of the con-
stitution : but this statute was limited to
a duration of three years from the passing

of the Act, and until the end of the then
session of Parliament, and was repealed in
1869 (32 & 33 Vict. e. 24).

(d) R. V. Rouse, 4 Cox, 7.

(e) This enactment was repealed in 1869
(32 & 33 Vict. c. 24, s. 1), so far as it re-
lated to any proceedings under the sections
of the Act of 1799 which are included in
the repeal schedule of the Act of 1869, but
is re-enacted in that schedule as to the
portion of the 1799 Act there set forth.
See note [h], ante, p. 332.

VOL, 1.

( 338a )

CANADIAN NOTES.

OF UNLAWFUL OATHS, ETC.

To Commit Crime. — Code sec. 129.

To Commit Treason, etc. — Code see. 130.

Declaration After Compulsion. — Code sec. 131.

( 339 )

BOOK THE FOUETH.

OP OFFENCES RELATmO TO THE EIGHTS AND REVENUES
OP THE CROWN.

CHAPTER THE FIRST.

OF OFFENCES RELATING TO PRECIOUS METALS AND TREASURE TROVE.

A. Precious Metals.

Mines. — By its prerogative, the Crown has at common law a right of
property in all mines of gold or silver {thesauri de terra) opened within
the King's dominions, whether in lands of the Crown or of a subject (a).
The prerogative was held to extend to mines of baser metal in which
gold or silver was mixed, until the law was altered (6). By virtue of
this prerogative, gold and silver mines, until aptly severed from the
title of the Crown and vested in a subject, are not regarded as partes soli,
or as incidents of the land where they are found (c), and do not pass
out of the Crown except by apt and express words of grant {d). The
severance of the minerals from the soil is not larceny, and the remedy
for mining for gold or silver without royal licence is not by indictment
or criminal information, but by Bnghsh information for intrusion upon
the rights of the Crown (e). Non-disclosure of gold or silver mines is said
to be a concealment from the King (/), and punishable (g).

B. Treasure Trove.

By its prerogative the Crown is entitled to all treasure trove {the-
saurus in terra), i.e., ' gold or silver in coin or plate or bullion,' ' found
concealed in a house, or in the earth, or other private place, the owner
thereof being unknown ' {h). The royal right attaches on the hiding of
the treasure, and not where it was casually lost or deliberately abandoned
by being thrown into the sea or into a public place {i), in which case

[a] Case of Mines [1568], Plowd. 310. [1876], 2 A.C. 163.
Case of Saltpetre, 12 Co. Rep. 12. Att.- (e) Plowd. 310.

Gen. V. Morgan [1891], 1 Ch. 432, 455, (/) Plowd. 317.

Lindley, L.J. Chit. Prerog. Crown, 145. (g) Ibid. 320.

4 Bl. Com. 121. (h) Chit. Prerog. Crown, 153; 3 Co.

(6) 1 WiU. & M. c. 30 ; 5 Will. & M. c. 6. Inst. 132 ; Cap. It. 1 Statt. Realm, 233 ;

Att.-Gen. v. Morgan [1891], 1 Ch. 432. Staundf. 39. Att.-Gen. v. British Museum

(c) Att.-Gen. of British Columbia v. Att.- Trustees [1903], 2 Ch. 598, 608, Farwell, J.
Gen. of Canada [1889], 14 A.C. 295, 302. (i) Ibid.

[d] WooUey v. Att.-Gen. of Victoria

340 Of Offences Relating to the Revenue, &c. [book iv.

the finder is entitled to the property as against every one but the
owner (/). In the case of Saltpetre (A:), it is said that 'the King may dig
in the land of a subject for treasure trove, for he hath the property. This
prerogative, described as one of the flowers of the Crown, maybe devested
by express grant to a subject {I). Until the Crown has acquired possession
of treasure trove it is not the subject of larceny (m).

It is the duty of every person who finds, or knows of the finding of
hidden treasure, to give notice to the coroner of the district within which
it is found, who thereupon must hold an inquiry as to who were the finders
and who is suspected thereof (w). Wilful and knowing conceahnent
from the King of the finding of hidden treasure is a misdemeanor, now
punishable by fine (or) imprisonment, or both {nn), which has been
described as a form of misprision of felony (o). The offender may be
proceeded against on the coroner's inquisition (p), or on indictment {q),
or on both (r). It is not necessary in the indictment to aver that an
inquisition was taken before the coroner or office found as to the title
of the Crown (s). Indeed, the title of the Crown is independent of the
findings of the inquest, and the coroner has no jurisdiction to inquire
into the title to treasure as between Crown and subject {t). It is not
necessary to prove that the concealment was fraudulent (m). Where
B. found hidden treasure of gold, and believing it to be brass, offered to
sell it to T. and others, who, knowing that it had been found, and was
gold, bought it as brass and resold it as gold, and told lies to conceal the
transaction, it was held that T. and the others were guilty of concealing
treasure trove {v).

C. Bullion and Plate.

Bullion properly means gold or silver in the mass or lump, as dis-
tinguished from coin or manufactured articles. The term is, however,
sometimes applied to coin or gold or silver wares and manufactures
considered simply with reference to the value of the raw material {w).

(j) See post. Vol. ii. p. 1291, ' Larceny.' Thomas, L. & C. 313 ; 33 L. J. M. C. 22.

(h) 12 Co. Rep. 13. It is not necessary in an indictment for

(I) Att.-Gen. v. British Museum Trustees concealing treasure trove to allege an inqui-

[1903], 2 Ch. at p. 614, Farwell, J. sition before the coroner or to shew the title

(to) 3 Co. Inst. 108 ; 1 Hale, 510 ; 1 of the Crown by office found. R. v. Toole,

Hawk. c. 19, s. 38. Jr. Rep. 2 C. L. 36 ; 11 Cox, 75 (I). See

(») 50 & 51 Vict. 0. 71, s. 36. Att.-Gen. Att.-Gen. v. Moore [1893], 1 Ch. 676. In

V. Moore [1893], 1 Ch. 676. R. v. Thomas the old authorities are dia-

{nn) Where in ploughing a field B. turned cussed,

up certain pieces of old gold, and sold them (o) 3 Co. Inst. 133 ; 4 Bl. Com. 121.

to T. for old brass at sixpence a pound, (p) See R. v. Thomas, L. & C. 313, 315 ;

saying where he had found them, and T. 33 L. J. M. C. 22, for the form of

went to W., and they ascertained it was inquisition.

gold, and T. sent W. to London, and he (q) R. v. Toole [1867], 11 Cox, 75.

sold it for gold ; they were held to be (r) R. v. Thomas, uU sup.

properly convicted of the misdemeanor of (s) R. v. Toole, uli sup. Chit. Prerog.

concealing treasure trove, although B. was Crown, 259.

wholly innocent ; and it was also held that {t) Att.-Gen. v. Moore [1893], I Ch. 676.

it is not necessary in an indictment for this (m) R. v. Thomas, uM sup

offence to allege that the prisoners con- (v) Ibid.

cealed the treasure fraudulently ; but it is (w) Murray Oxford Diet. «. v. Bullion ;

enough to allege that they did it ' unlaw- 1 Hawk. u. 18, s. 1.
fully, wilfully, and knowingly.' R. v.

CHAP. I.] Of Treasure Trove. 341

1. The melting down of coin was contrary to a series of enactments {x),
which were repealed in 1819 (59 Geo. III. c. 49, s. 11). With a view more
effectually to prevent the clipping, diminishing, or impairing coin of
the realm, power was given for making entry to search for buUion, and
to punish persons found in possession of bullion unless they could prove
it to be lawful silver, and not before melting either coin or clippings {y).

2. The counterfeiting, exportation, and dealing with buUion were
dealt with by statutes, all now repealed (2).

3. Frauds with respect to making, working, putting to sale, exchanging,
selling, importing {a), or exporting gold or silver wares are regulated
by a series of enactments (&), with the aim of securing the fineness required
by the statutory standards and authenticated by the marks of the Gold-
smiths Company. In the legislation now in force, which ranges from
1423 to 1907, such wares are usually described as gold or silver plate (c).
Of the offences created by the statutes, except as to counterfeiting or
transposing assay marks {d), many are outside the scope of this treatise,
being usually penalties or forfeitures of specified sums or of the offending
wares : and the residue fall within the class of frauds and cheats in trade,
and do not affect the coin of the realm (e).

It has been held that knowingly exposing for sale and seUing wrought
gold under the sterhng alloy as gold of the true standard, though indictable
in goldsmiths, is a private imposition only in a common person, and the
party injured is left to his civil remedy ( / ).

Offenders fraudulently affixing public and authentic marks on such
wares of a value inferior to that indicated by the marks would seem to be
indictable at common law as for a cheat, as well as incurring the penalties
imposed by the Merchandise Marks Act, 1887 (50 & 51 Vict. c. 28) {post,
Vol. ii. p. 1591). F., a working goldsmith, was indicted for falsifying
plate, by putting in too much copper, and then corrupting one of the
assay master's servants to help him to the proper assay marks, with
which he stamped his plate, and sold it to the goldsmiths; and being
convicted, he was fined £100 and adjudged to stand three times in the
pillory; and was also forejudged of his trade that he should not use that
trade again as a master workman (g).

{x) e.g., 17 Edw. IV. o. 1. This Act is in 1 East, P.C. pp. 188-194. The date of

repealed in toto as to England (in 1863) repeal of such as are not now in force is

(S. L. R.), and as to Ireland in 1872 stated in the Chronological Table prefixed

(S. L. R.) : 14 Car. II. c. 31. to the Official Index to the Statutes. For

(y) 6 & 7 Will. III. c. 17, s. 8. This Act a discussion of certain of the Acts, see

was expressly repealed in 1867 (S. L. R.), Goldsmiths Co. v. Wyatt [1907], 1 K.B. 95.

having, it would seem, already been vir- The earliest Act (28 Edw. I. stat. 3, c. 20)

tually repealed in 1819 (59 Geo. III. u. 49, was repealed in 1856 (19 & 20 Vict. c. 64).

s. 12). (c) See Goldsmiths Co. t'. Wyatt [1907],

(z) See 1 East, P.C. 194 ; 1 Hawk. c. 18, 1 K.B. 95 (C. A.),

ss. 1-14. (d) See post, tit. ' Forgery,' Vol. ii. p. 1714.

(a) See 5 & 6 Vict. o. 47, s. 59 ; 39 & 40 (e) Post, p. 343 et seq.

Vict. c. 36, s. 49. (/ ) R. v. Bower, 1 Cowp. 323.

{h) For a list of these enactments, see (g) R. v. Fabian [1664], Kel. (J.), 39 ;

Official Index to the Statutes (ed. 1907), 1 East, P.C. 194. This judgment must

tit. ' Plate.' The earlier Acts are coUeoted have been at common law.

( 342a )

CANADIAN NOTES.

Of Offences with Relation to Precious Metals, etc. — See Code
see. 424 ; 8 & 9 Bdw, VII. eh. 9.

Holder of Lease of Gold or Silver Mine Defrauding His Majesty
or the Owner of the Mine. — Code sec. 424 ; 8 & 9 Edw. VII. eh. 9.

Unlawful Purchase or Sale of Quartz, Gold or Silver. — Code sec.
424;8,&9Edw. VII. eh. 9.

In any indictment for any offence mentioned in sec. 424 it shall
be sufficient to lay the property in His Majesty or in any person or
corporation, in different counts in such indictment. Code sec. 866.

Upon a prosecution for any offence under see. 424 any variance
when the property is laid in a person or corporation, between the
statement in the indictment and the evidence adduced, may be
amended at the trial. If no owner is proved, the indictment may be
amended by laying the property in His Majesty. Code sec. 893.

On complaint in writing made to any justice of the county, dis-
trict or place by any person interested in any mining claim, that
mined gold or gold-bearing quartz or mined or unmanufactured silver
or silver ore is unlawfully deposited .in any place, or held by any
person, contrary to law, a general search warrant may be issued by
such justice as in the ease of stolen goods, including any number of
places or persons named in such complaint ; and if, upon such search,
any such gold or gold-bearing quartz or silver or silver ore is found
to be unlawfully deposited or held, the justice shall make such order
for the restoration thereof to the lawful owner as he considers right.
Sec. 637.

The decision of the justice, in such case is subject to appeal as in
ordinary cases coming within the provisions of Part XV. Code sec.
637.

(343)

CHAPTER THE SECOND.

OF OFFENCES WITH RESPECT TO COIN.

Most offences with respect to British or foreign coin committed in
the United Kingdom are punishable under the Coinage Offences Act,
1861 (24 & 25 Vict. c. 99) (a). By the Coinage Colonial Offences Act, 1853
(16 & 17 Vict. c. 48), the provisions of the United Kingdom Acts, 2 & 3
Will. IV. 0. 34, and 7 Will. IV. & 1 Vict. c. 90, as to coinage offences are to
extend to and be in force in all British colonies and possessions abroad,
except so far as by the law in force on August 4, 1853, in the colony, or
by subsequent local legislation, provision was or should thereafter be made
for the punishment of offences relating to the coin or the repeal of all
or. any of the extended enactments.

Sect. I. — Definitions and General Provisions.

King's Money. — The coin or money of this kingdom consists properly
of what is called sterling money, made of gold or silver only, with a
certain alloy, coined and issued by the King's authority : and such
money is supposed to be referred to by any statute naming ' money '
generally (6).

By the Coinage Act, 1870 (33 & 34 Vict. c. 10, s. 5), no piece of gold,
silver, copper, or bronze, or of any metal or mixed metal of any value
whatever, shall be made or issued except by the mint as a coin or a token
for money, or as purporting that the holder thereof is entitled to demand
any value denoted thereon. Every person who acts in contravention of
this section is liable on summary conviction to a penalty not exceed-
ing twenty pounds.

The weight, alloy, impression, and denomination of the coin of tie
realm was for many centuries settled by indenture between the King and
the master of the mint. The standard of coins is now regulated by the
Coinage Acts, 1870 (33 & 34 Vict. c. 10), 1889 (52 & 53 Vict. c. 58), 1891,
and 1893. Proclamation is not essential to give currency to coin ; but the
currency of any given pattern or denomination of coin is regulated by
proclamation of the King. The proclamations have" since 1870 been
issued under sect. 11 of the Coinage Act, 1870. These proclamations

(a) This superseded 2 & 3 Will. IV. o. 34, treason, as it affected the prerogative of

which was repealed by 24 & 25 Vict. c. 95, the Crown with reference to the coining and

s. 1. Prior to 1832 counterfeiting the legalisation of money. 1 East, P.O. 147 ;

King's money was punishable by a series 1 Hale, cc. 17, 18, 19, 20.

of statutes, beginning with the Treason (6) 1 East, P.O. 147 ; 1 Hale, cc. 17,

Act, 1351 (25 Edw. III. st. 5, c. 2), under 18,19,20. Coin of brass, &c., was not within

most of which the offence was treated as the definition. 1 Hawk. c. 17, s. 57.

344 Of Offences Relating to the Revenue, &c. [book iv.

have effect as if enacted in the statute (sect. 11). They need not be
proved (c), but are printed as statutory rules and orders and can be
proved by an official edition or print. In prosecutions for coining, it may
be of use in case of any new coin with a new impression, not yet famihar
to the people, to produce the relevant proclamation or one of the officers
of the mint cognisant of the fact, or the stamps used, or the like evidence.
But in general, whether the coin is the King's current coin or not is a
mere question of fact which may be found upoii evidence of common
usage or notoriety {d). Any coin, once legally made and issued by the
King's authority, continues to be the current coin of the kingdom until
decried or recalled, notwithstanding any change in the authority by which
it was constituted (e). His Majesty in council may direct the estab-
lishment of any branch of the mint in any British possession, and make
the coins issued by it a legal tender (/). His Majesty in council may
direct that foreign coins may be a legal tender in any part of his
dominions {g).

The Coinage Ofiences Act, 1861 (24 & 25 Vict. c. 99), which appUes
to the whole of the United Kingdom {h), contains the following definitions,
sect. 1 : that, ' In the interpretation of and for the purposes of this
Act, the expression —

"The King's current gold or silver coin," shall include any gold or
silver coin coined in any of His Majesty's mints, or {i) lawfully current,
hy virtue of any proclamation or otherwise (ii), in any part of His Majesty's
dominions, whether within the United Kingdom or otherwise ; and the
expression —

"The King's copper coin," shall include any copper coin and any
coin of bronze or mixed metal coined in any of His Majesty's mints, or
lawfully current, hy virtue of any proclamation or otherwise, in any part
of His Majesty's said dominions ; and the expression —

"False or counterfeit coin resembhng or apparently intended to
resemble or pass for any of the King's current gold or silver coin," shall
include any of the current coin which shall have been gilt, silvered,
washed, coloured, or cased over, or in any manner altered, so as to
resemble or be apparently intended to resemble or pass for any of the
King's current coin of a higher denomination ; and the expression —

"The King's current coin" shall include any coin coined in any of

(c) 1 East, P.O. 142, where see some old power has not been exercised as to the
cases in which proclamation by the writ of United Kingdom. As to other parts of the
proclamation under the great seal, or a Empire, see Ohaloner's Colonial Currency,
remembrance thereof, is considered to be 1893, and St. R. & 0. (rev. ed. 1904), under
necessary to prove a coin current. the titles ' Coin, Colonies,' and of the

(d) 1 East, P.O. 149. particular colonies.

(e) 1 East, P. C. 148. Coin is now decried (h) Sect. 43. It came into force on
or recalled by proclamation under the Nov. 1, 1861.

Coinage Act, 1870. Proclamation has for (»') The word ■ or ' in this and the subse-

centuries been the recognised mode of de- quent definitions was substituted for the

crying coin. But decrial has also been word ' and ' used in 2 & 3 Will. IV. c. 34,

effected by Act of Parliament, as by 9 s. 21, and the words ' in virtue of any

Will. III. 0. 2, and 6 Geo. II. c. 26. proclamation or otherwise ' were added, so

(/) Such branches are established in as to bring all coin lawfully current within

Australia (Sydney, Melbourne and Perth), the British Empire within the scope of the

South Africa, and Canada. Act.

(j/)33^Vict. c. 10, s. 11 (7). This (w) cy., By Colonial Act or Ordinance.

CHAP. II.] Of Offences Relating to Coin. 345

His Majesty's mints, or lawfully current, by virtue of any proclamation
or otherwise, in any fart of His Majesty's said dominions, and whether
made of gold, silver, coffer, bronze, or mixed metal (/).

Possession. — And where the having any matter in the custody or
possession of any person is mentioned in this Act, it shall include, not only
the having of it by himself in his personal custody or possession, but also
the knowingly and wilfully having it in the actual custody or fossession of
any other person, and also the knowingly and wilfuUy having it in any
dweUing-house or other building, lodging, apartment, field, or other place,
open or inclosed, whether belonging to or occupied by himself or not,
and whether such matter shall be so had for his own use or benefit or for
that of any other person ' {h).

Right to test Suspected Coin. — By sect. 26, ' Where any coin shall
be tendered as the King's current gold or silver coin to any person who shall
suspect the same to be diminished otherwise than by reasonable wearing,
or to be counterfeit, it shall be lawful for such person to cut, break, bend,
or deface such coin ; and if any coin so cut, broken, bent, or defaced shall
appear to be diminished otherwise than by reasonable wearing, or to be
counterfeit, the person tendering the same shall bear the loss thereof ; but
if the same shall be of due weight, and shall appear to be lawful coin, the
person cutting, breaking, bending, or defacing the same is hereby required
to receive the same at the rate it was coined for; and if any dispute shall
arise whether the coin so cut, broken, bent, or defaced be diminished in
manner aforesaid, or counterfeit, it shall be heard and finally deter-
mined in a summary manner by any justice of the peace, who is hereby
empowered to examine upon oath as well the parties as any other person,
in order to the decision of such dispute ; and the tellers at the receipt of
His Majesty's Exchequer, and their deputies and clerks, and the receivers
general of every branch of His Majesty's revenue, are hereby required
to cut, break, or deface, or cause to be cut, broken, or defaced, every
piece of counterfeit or unlawfully diminished gold or silver coin which
shall be tendered to them in payment of any part of His Majesty's
revenue' (l).

Seizure of Suspected or Counterfeit Coin and Coining Tools. — By sect.
27, ■ If any person shall find or discover in any place whatever, or in the
custody or possession of any person having the same without lawful
authority or excuse, any false or counterfeit coin resembling or apparently
intended to resemble or pass for any of the King's current gold, silver, or
copper coin, or any coin of any foreign prince, state, or country, or any

(/) The definition of current coin was and Pollock and Huddleston, BB. (diss,

new in 1861. The word include 'used' in Lush and Stephens, JJ.).
this and the preceding definitions is not a (k) Framed on 2 & 3 WiU. IV. c. 34, s. 21,

word of limitation, but of extension. It and 22 & 23 Vict. c. 30. The words

has, therefore, been held that a genuine 'knowingly and wilfully,' &c. (italicised

sovereign has been made false and counter- above), were inserted to remove the doubts

f eit which had been fraudulently filed at raised as to the meaning of 2 & 3 WO. IV.

the edges, thereby reducing its weight by c. 34, s. 21, in R. o. Eogers, 2 Mood. 85 ;

one twenty-fourth, and by destroying the R. v. Gerrish, 2 M. & Rob. 219 ; and B. v.

old milling, in place whereof a new milling WiUiams, 1 C. & M. 259.
of the edges had been made, so as to make (l) Coin which is l^ht, or has been called

the coin look like a current coin. R. v. in by proclamation, is defaced under 33 &

Hermann, 4 Q.B.D. 284, Coleridge, C.J., 34 Vict. i;. 10, s. 7.

346 Of Offences Relating to the Revenue, dc. [book iv.

instrument, tool, or engine whatsoever adapted and intended for the
counterfeiting of any such coin, or any filings or clippings, or any gold or
silver bullion, or any gold or silver in dust, solution, or otherwise, which
shall have teen produced or ohtaiiied by diminishing or lightening any of the
Kinfs current gold or silver coin, it shall be lawful for the person so finding
or discovering, and he is hereby required, to seize the same, and to carry
the same forthwith, before some justice of the peace ; and where it shall
be proved, on the oath of a credible witness, before any justice of the
peace, that there is reasonable cause to suspect that any person has been
concerned in counterfeiting the King's current gold, silver, or copper
coin, or aiay such foreign or other coin as in this Act before mentioned, or
has in his custody or possession any such false or counterfeit coin, or any
instrument, tool, or engine whatsoever adapted and intended for the
making or counterfeiting of any such coin, or any other machine used or
intended to be used for malcing or counterfeiting any such coin, or any such
filings, clippings, or bullion or any such gold or silver in dust, solution, or
otherwise, as aforesaid, it shall be lawful for any justice of the peace, by
warrant under his hand, to cause any place whatsoever belonging to or in
the occupation or under the control of such suspected person to be
searched, either in the day or in the night, and if any such false or counter-
feit coin, or any such instrument, tool, or engine, or any such machine,
or any such filings, clippings, or bullion or any such gold or silver in dust,
solution, or otherwise as aforesaid, shall be found in any place so searched,
to cause the same to be seized and carried forthwith before some justice
of the peace ; and whensoever any such false or counterfeit coin, or any
such instrument, tool, or engine, or any such machine, or any such filings,
clippings, or bullion, or any such gold or silver in dust, solution, or otherwise,
as aforesaid, shall in any case whatsoever be seized and carried
before a justice of the peace, he shall, if necessary, cause the same to be
secured, for the purpose of being produced in evidence against any person
who may be prosecuted for any offence against this Act ; and all such
false and counterfeit coin, and all instruments, tools, and engines adapted
and intended for the making or counterfeiting of coin, and all such
machines, and all such filings, clippings, and bullion, and all such gold and
silver in dust, solution, or otherwise, as aforesaid, after they shall have been
produced in evidence, or when they shall have been seized, and shall not
be required to be produced in evidence, shall forthwith be delivered up
to the officers of His Majesty's Mint, or to the solicitors of His
Majesty's Treasury (m), or any person authorized by them to receive the
same ' (w).

Proof of Coin being Counterfeit. — By sect. 29, ' Where upon the trial
of any person charged with any offence against this Act it shall be neces-
sary to prove that any coin produced in evidence against such person is
false or counterfeit, it shall not be necessary to prove the same to be false
and counterfeit by the evidence of any moneyer, or other officer of His

(m) See 8 Edw. VII. c. 3, s. 2 (5). of filings of coin, gold or silver dust, and

(ra) Framedon2 &3 Will. IV. 0. 34, s. 14; machines mentioned in the preceding

37 Geo. III. c. 126, s. 7 ; and 43 Geo. III. clauses of the Act. As to the words ' with-

c. 139, s. 7. The parts in italics are intro- out lawful authority or excuse,' see R. v.

duoed in order to provide for the seizure Harvey, L. R. 1 C. 0. R. 284.

CHAP. II.] Of Offences Relating to Coin. 347

Majesty's Mint, but it shall be sufficient to prove the same to be false or
counterfeit by the evidence of any other credible witness' (o).

Where the Offence is Complete.— By sect. 30, ' Every offence of falsely
making or counterfeiting any coin, or of buying, selling, receiving, faying,
tendering, uttering, or putting off, or of offering to buy, sell, receive, pay,
utter, or put off, any false or counterfeit coin, against the provisions of
this Act, shall be deemed to be complete, although the coin so made or
counterfeited, or bought, sold, received, paid, tendered, uttered, or put off,
or offered to be bought, sold, received, paid, uttered, or put off, shall not
be in a fit state to be uttered, or the counterfeiting thereof shall not be
finished or perfected' (p).

Power to apprehend Persons found committing Offences.— Sect. 31.
' It shall be lawful for any person whatsoever to apprehend any person
who shall be found committing any indictable offence, or any high crime
and offence, or crime and offence, against this Act, and to convey or
deliver him to some peace officer, constable, or officer of police, in order
to his being conveyed as soon as reasonably may be before a justice of the
peace or some other proper officer, to be dealt with according to law ' (q).

Misdemeanors, Fine, &c. — Sect. 38. ' Whenever any person shall be
convicted of any indictable misdemeanor punishable under this Act, the
Court may, if it shall think fit, in addition to or in lieu of any of the
punishments by this Act authorised, fine the offender, and require him
to enter into his own recognizances, and to find sureties, both or either,
for keeping the peace and being of good behaviour ; and in case of any
felony punishable under this Act the Court may, if it shall think fit,
require the offender to enter into his own recognizances and to find sureties,
both or either, for keeping the peace, in addition to any punishment by
this Act authorised ; provided that no person shall be imprisoned under
this clause, for not finding sureties for any period exceeding one year ' (r).
The offender may also be dealt with under the Probation of Offenders
Act, 1907 (s).

The provisions of sects. 39 and 40 as to hard labour and solitary
confinement have been superseded by other legislation (t), and repealed
in 1893 (S. L. E.). Sect. 42, which related to the payment of the costs
in England, was repealed in 1908 (u).

(o) Taken from 2 Will. IV. u. 34, s. 17, unwillingness to apprehend in such cases, in

vide ante, p. 343. consequence of doubts that prevailed among

(p) Taken from 2 & 3 Will. IV. c. 34, s. 3, the public as to the right to do so.

which was limited in terms to making or The words, ' or officer of police,' were

counterfeiting gold or silver coin, and it introduced in the House of Commons quite

was held not to apply to selling counterfeit unnecessarily, as without doubt every

coin. The words in italics have, therefore, officer of police is a peace officer ; and they

been added in order to include all cases of render this clause inconsistent with other

' buying, selling,' &c. See B. v. Bradford, clauses in some of the other Acts. C. S. G.

2 Crawf. & Dix, Ir. Circ. Rep. 41. Sect. 41 provides for summary proceed-

(q) This clause is clearly unnecessary, so ings.

far as it relates to any felony or indictable (r) This section was new in 1861.

misdemeanor, for there is no doubt what- (s) Ante, p. 227.

ever that any person in the act of com- (t) Ante, pp. 212, 213 ; post, p. 348.

mitting any such offence is liable by the {u) By 8 Edw. VII. c. 15, q.v. post, Bk.

common law to be apprehended by any xii. c. v. For the earlier practice as to costs

person ; but it was introduced at the in such cases see the 6th ed. of this work,

instigation of the Solicitors of the Treasury, Vol. i. p. 428, and Archb. Cr. PI. (23rd

3fi it had been found that there was great ed.), 246.

348 Of Offences Relating to the Revenue, <&c. [book iv.

Sect. II. — Punishment and Venue.

General Rule.— The pimishment of ofEences relating to the coin is, as to
the maximum term of penal servitude, fixed by the enactment defining
each offence, and if no maximum is fixed by the statute the maximum
term is five years. By the Penal Servitude Act, 1891 (54 & 55 Vict,
c. 69), s. 1, the minimum term of penal servitude is fixed at three
years {v) ; and in lieu of penal servitude the Court may in its discretion
(unless an Act passed since August 5, 1891, otherwise provides) award
imprisonment for any term not exceeding two years, with or without
hard labour. Principals in the second degree and accessories before the
fact to felonies within the Act are punishable as principal offenders ; and
accessories after the fact are liable to imprisonment, with or without hard
labour, for any term not exceeding two years {w). The provisions of the
Coinage Offences Act, 1861, as to punishment superseded by this section
were repealed by the Statute Law Eevision Acts of 1892 and 1893, and
are omitted from the text of this work {x).

Accessories and Accomplices. — ^Accomplices in offences concerning
the coin which amount to felony, follow the general rule applicable to
felony. If two agree to counterfeit, and one does it in consequence of that
agreement, both are guilty. If one counterfeits, and another by agree-
ment beforehand afterwards puts it off ; the latter is a principal. So
if he puts it off afterwards, knowing that the other coined it ; or if he
furnished the coiner with tools, or materials for coining («/).

Proof that a man occasionally visited coiners ; that the rattling of
money was occasionally heard with them ; that he was seen counting
something as if it was money when he left them ; that, on coming to
the lodgings just after their apprehension, he endeavoured to escape,
and was found to have bad money about him ; is not sufficient evidence
to implicate him, as counselling, procuring, aiding, and abetting the
coining (z).

Venue. — By~sect. 28, ' Where any person shall tender, utter, or put
off any false or counterfeit coin in one county or jurisdiction, and shall also
tender, utter, or put off any other false or counterfeit coin in any other county
or jurisdiction, either on the day of such first mentioned tendering, uttering,
or putting off, or within the space of ten days next ensuing, or where two or
more persons, acting in concert in different counties or jurisdictions,
shall commit any offence against this Act, every such offender may be
dealt with, indicted, tried, and punished, and the offence laid and charged
to have been committed, in any one of the said counties or jurisdictions,
in the same manner in all respects as if the offence had been actually and
wholly committed within such one coimty or jurisdiction ' {a).

(v) Ante, pp. 211, 212. The Act of 1861 (y) 1 East, P.O. 186.

contained a minimum term of three years, -(z) R. v. Isaacs, Hil. T. 1813. MS.

raised tofive in 1864 (27 & 28 Vict. c. 47, s. 2), Bayley, J.

but restored to three by the Act of 1891. (a) Taken from 2 Will. IV. c. 34, s. 15,

(w) 24 & 25 Vict. c. 99, s. 35, taken from except the words in italics, which were new

2 & 3 WUl. IV. 0. 34, s. 18 ; vide ante, p. 212. in 1861, introduced to remove a doubt

(x) The parts repealed include not only which had arisen whether a person tendering,

portions of the section defining offences, &c., coin in one jurisdiction, and afterwards

but also s. 39 (hard labour) and s. 40 tendering, &c., coin in another jurisdiction,

(solitary confinement). within a. 10, could be tried in either. As

CHAP. II.1 Of Counterfeiting Coin. 349

Oflences in Admiralty Jurisdiction. — By sect. 36, ' All indictable
offences mentioned in this Act which shall be committed within the juris-
diction of the Admiralty of England or Ireland shall be deemed to be
offences of the same nature and liable to the same punishments as if
they had been committed upon the land in England or Ireland, and may
be dealt with, inquired of, tried, and determined in any county or place
in England or Ireland in which the offender shall be apprehended or be
in custody, in the same manner in all respects as if the same had been
actually committed in that county or place ; and in any indictment for
any such offence, or for being accessory to any such offence, the venue
in the margin shall b^ the same as if such offence had been committed
in such county or place, and the offence itself shall be averred to have
been committed " on the high seas " ; . . . provided that nothing herein
contaiaed shall alter or affect any of the laws relating to the government
of His Majesty's land or naval forces ' (6).

Sect. III. — Of Counteefeiting Coin.

A. British Coin.

King's Gold and Silver Coin. — Sect. 2. ' Whosoever shall falsely
make or counterfeit any coin resembling or apparently intended to
resemble or pass for any of the King's current gold or silver coin, shall
in England and Ireland, be guilty of felony, and in Scotland of a high
crime and offence, and being convicted thereof shall be liable . . . to be
kept in penal servitude for life . . .'(c).

Colouring Coin or Pieces of Metal with Intent to make them pass for
British Gold or Silver Coin. — Sect. 3. ' Whosoever shall gild or silver,
or shall, with any wash or materials capable of producing the colour or
appearance of gold or of silver, or by any means whatsoever, wash, case over,
or colour any coin whatsoever resembling or apparently intended to
resemble or pass for any of the King's current gold or silver coin ; or
shall gild or silver, or shall, with any wash or materials capable of pro-
ducing the colour or appearance of gold or of silver, or by any means
whatsoever, wash, case over, or colour any piece of silver or copper, or of
coarse gold or coarse silver, or of any metal or mixture of metals respec-
tively, being of a fit size and figure to be coined, and with intent that
the same shall be coined into false and counterfeit coin resembling or
apparently intended to resemble or pass for any of the King's current
gold or silver coin ; or shall gild, or shall, with any wash or materials
capable of producing the colour or appearance of gold, or by any means
whatsoever, wash, case over, or colour any of the King's current silver
coin, or file or in any manner alter such coin, with intent to make the same
resemble or pass for any of the King's current gold coin ; or shall gild
or silver, or shall, with any wash or materials capable of producing the

the offence created by that section is only (6) See ante, p. 31 et seq.

a misdemeanor, probably there was no (c) Taken from 2 & 3 Will. IV. c. 34, s. 3.

substantial ground for that doubt, but it See the interpretation clause, ante, p. 344,

was thought better to set the matter at and as to punishment, ante, p. 348.

rest.

350 Of Offences Relating to the Revenue, &c. [book iv.

colour or appearance of gold or silver, or by any means whatsoever, wash,
case over, or colour any of the King's current copper coin, or file or in
any Inanner alter such coin, with intent to make the same resemble or
pass for any of the King's current gold or silver coin, shall, in England
and Ireland, be guilty of felony, and in Scotland of a high crime and
offence, and being convicted thereof shall be liable, ... to be kept in
penal servitude for life . . .' {d).

Counterfeiting the King's Copper Coin.— Sect. 14. ' Whosoever shall
falsely make or counterfeit any coin resembling or apparently intended to
resemble or pass for any of the King's current copper coin . . . shall, in
England and Ireland, be guilty of felony, and in Scotland of a high crime
and offence, and being convicted thereof shall be liable ... to be kept
in penal servitude for any term not exceeding seven years . . . ' (e).

The counterfeiting of copper coin was only a misdemeanor at common
^^^ (/)> such coin not being the King's money within the Statute of
Treasons (g). It was first made felony in 1771 (h).

Selling Medals resembling Current Coin.— By the Counterfeit Medal
Act, 1883 (46 & 47 Vict. c. 45), s. 2, ' If any person without due authority
or excuse (the proof whereof shall lie on the person accused) makes or
has in his possession for sale, or offers for sale, or sells, any medal, cast,
coin, or any other like thing, made wholly or partially of metal or any
metallic combination and resembling in size, figure, and colour any of the
King's current gold or silver coin, or having thereon a device resembling any
device on any of the King's current gold or silver coin, or being so formed
that it can by gilding, silvering, colouring, washing, or other like process,
be so dealt with as to resemble any of the King's current gold or silver
coin, he shall be guilty in England and Ireland of a misdemeanor, and
in Scotland of a crime and offence, and on being convicted shall be
liable to be imprisoned for any term not exceeding one year, with or
without hard labour.' By sect. 3 ' " The King's current gold or silver
coin " includes any gold or silver coin coined in or for any of His Majesty's
mints, or lawfully current by virtue of any proclamation or otherwise

{d) Taken from 2 & 3 Will. IV. c. 34, s. 4, the wash was held to be colouring. R. v.
with the addition of the words in itaUes. Case, 1 Leach, 154n. ; 1 East, P.O. lOG.
The words omitted are repealed. For other Certain differences of opinion among the
punishments vide ante, p. 348 et seq. The judges in this case appear to have led to the
words ' by any means whatsoever,' were substitution for the words ' materials pro-
introduced in order to include every pro- ducing the colour ' in the Act of William
cess by which false metal can be made to III. of the words ' materials capable of
appear like gold or silver, whether such producing the colour, &c.,' in 2 & 3 Will. IV.
appearance be produced by galvanism or c. 34, s. 4, and in the present enactment,
otherwise howsoever. The order of the In R. v. Turner, 2 Mood. 42, an indictment
words in the former section was ' wash, containing the words ' capable, &c.' it was
colour, or case over,' and it was advisedly proved that the accused was found gilding
altered. On an indictment under 8 & 9 sixpences with gold. It was contended
Will. III. 0. 26, s. 4 (rep.), the use of aqua that the words 'capable, &c.' excluded
fortis to draw to the surface of base metals gold and appUed only to imitation ■ sub-
the silver latent therein was held to be stances. But a verdict of guilty was given
colouring with silver. R. v. Lavey, 1 and was sustained by the majority of the
Leach, 153 ; 1 East, P.C. 106. And on consulted judges.

another indictment on the same statute (e) Taken from 2 Will. IV. c. 34, s. 12.

where blanks (made of an alloy of brass and ( / ) It is ao recited in 15 & 16 Geo. II.

silver) had to be taken out of a wash and c. 28, s. 6.

rubbed to give them the appearance of {g) Ante, p. 343, note (a),

silver, the preparing and steeping them in (h) 11 Geo. III. c. 40.

CHAP. II.] Of Counterfeiting Coin. 351

in any part of His Majesty's dominions, whether within the United
Kingdom or otherwise.'

Counterfeit Coin by OfBcers in tlie Mint. — Not only those who
counterfeit the King's coin without his authority, but even persons
employed in the mint or its branches are within the Coinage Offences
Act, 1861, if for their own lucre they make the money of baser alloy, or
lighter than they are authorised and bound by law to do : for they can
only justify coining at all under the Coinage Acts and proclamations,
and the terms of their appointment ; and if they have not pursued that
authority, it is the same as if they had none. But mere mistake
in weight or alloy will not make them guilty ; the act must be
wilful, corrupt, and fraudulent {i).

What is Counterfeiting.— To be counterfeit within the statute, the
coin must resemble or be apparently intended to resemble or pass for a
genuine coin (/), but this resemblance is a matter of fact of which the
jury are to judge upon the evidence before them ; the rule being, that
the resemblance need not be perfect, but such as may in circulation
ordinarily impose upon the world [h). Thus a counterfeiting with some
small variation in the inscription, effigies, or arms, done probably with
intent to evade the law is yet within it ; and so is the counterfeiting in
a different metal, if in appearance it be made to resemble the true coin {I).

By sect. 30 of the Act of 1861 {ante, p. 347), the offence is complete
even if the counterfeiting is not finished or perfected nor the coin in a fit
state to be uttered (m). It is laid down by old authorities that if there is
a counterfeiting in iraud of the King, the offence is complete before
any uttering, or attempt to utter (w).

On an indictment for uttering a counterfeit half-sovereign, the coin
uttered was a Prince of Wales's medal ; and though on one side it bore
some resemblance to a good half-sovereign, having Queen Victoria's
head and the usual inscription, on the other side was the plume of the
Prince of Wales, with the words ' Prince of Wales's model half-sovereign.'
It was held that it was a question for the jury whether the coin was
intended by the maker to pass as a counterfeit coin, or was merely designed
for a plaything, a card- marker, &c. (o).

There is a sufficient counterfeiting where the counterfeit money is
made to resemble coin, the impression on which has been worn away
hy time (p).

(i) 1 East, P.O. 166. 1 Hale, 213. ton, J.

1 Hawk. c. 17, s. 55. 3 Co. Inst. 16, 17. {p) In R. v. Wilson [1783], 1 Leach, 285,

4 Bl. Com. 84. the shillings produced in evidence were

(j) 1 Hawk. 0. 17, s. 81. quite smooth, without the smallest vestige

{k) 1 Hale, 178, 184, 211, 215. of either head or tail, and without any

(I) 1 East, P.C. 164, citing 1 MS. Sum. resemblance of the shillings in circulation,

50, and R. v. Ridgeley, 1 East, P.C. 171 ; except their colour, size, and shape ; and

1 Leach, 189, Old Bailey, Dec. 1778. the Master of the Mint proved that they

(m) This section altered the law as laid were bad, but that they were very Uke

down under the Treason Act, 1351 (R. v. those shillings the impressions on which

Harris, 1 Leach, 135), and before 2 & 3 had been worn away by time, and might

Will. IV. e. 34 (R. v. Varley, 1 Leach, 76 ; very probably be taken by persons having

1 East, P.C. 164 ; 2 W. Bl. 682). less skill than himself for good shUlings.

(») 3 Co. Inst. 61 ; 1 Hale, 215, 228 ; 1 The Court were of opinion that a blank

Hawk. c. 17, s. 55 ; 1 East, P.C. 165. that is smoothed and made Hke a piece of

(o) R. 0. Byrne, 6 Cox. 475 dr.). Cramp- legal coin, the impression of which is worn

352 Of Offences Relating to the Revenue, &c. [book iv.

B. Foreign Coin.

Counterfeit Foreign Gold and Silver Coin.— Sect. 18 (<?). 'Whosoever
shall make or counterfeit any kind of coin, not being the King's current
gold or silver coin, but resembling or apparently intended to resemble
or pass for any gold or silver coin of any foreign prince, state, or
country, shall in England and Ireland be guilty of felony, and in
Scotland of a high crime and offence, and being convicted thereof shall
be liable ... to be kept in penal servitude for any term not exceeding
seven years . . . ' (r).

Counterfeit Foreign Coin other than Gold and Silver Coin.— Sect.
22 (s). 'Whosoever shall falsely make or counterfeit any kind of coin,
not being the King's current coin, but resembling or apparently intended
to resemble or pass for any copper coin, or any other coin made of any
metal or mixed metals of less value than the silver coin of any foreign
prince, state, or country, shall in England and Ireland be guilty of a
misdemeanor, and in Scotland of a crime and offence, and being con-
victed thereof shall be liable ... for the first offence to be imprisoned
for any term not exceeding one year, and for the second offence, to be
kept in penal servitude for any term not exceeding seven years . . .'(<).

Sect. IV. — Impairing and Defacing Current Coin.

Impairing Gold or Silver Coin, with intent.— Sect. 4 (m) enacts that,
' Whosoever shall impair, diminish, or lighten any of the King's current
gold or silver coin, with intent that the coin so impaired, diminished, or
lightened may pass for the King's current gold or silver coin, shall in
England and Ireland be guilty of felony, and in Scotland of a high crime
and offence, and being convicted thereof shall be liable ... to be kept
in penal servitude for any term not exceeding fourteen years . . . ' (v).

Unlawful Possession of Filings or Clippings of Gold or Silver Coin. —

Sect. b{w). ' Whoever shall unlawfully have in his custody or possession

out, and yet suffered to remain in circula- readily from having no appearance of an

tion, is sufficiently counterfeited to the impression : and in the deception the

similitude of the current coin of this realm offence consists.

to bring the counterfeiters and coiners of (q) Framed from 37 Geo. III. c. 126, s. 2.

such blanks within the statute ; these See the interpretation clause, ante, p. 343.

blanks having some reasonable likeness to (r) For other punishments, vide ante,

that coin which has been defaced by time, p. 348 et seq. The words omitted are

and yet passed in circulation. In R. v. repealed.

Walsh, 1 Leach, 364, 1 East, P.O. 164, the (s) Framed from 43 Geo. III. o. 139, s. 3.

counsel for the prisoners having objected, See s. 37 for the form of indictment for a

upon the fact of no impression of any sort second offence, &c., post, p. 360.

or kind being discernible upon the shillings {t) For other punishments, vide ante,

produced in evidence, that they were not p. 348 et seq. The words omitted are

counterfeited to the likeness and similitude repealed.

of the good and legal coin of the realm, the («) Taken from 2 & 3 WiU. IV. c. 34,

judges were of opinion, that it was a ques- s. 5, the words of which were ' with intent

tion of fact whether the counterfeit monies to mMke the coin pass,' &o., which iatent

were of the likeness and similitude of the never existed ; for the coin was not im-

lawful current silver coin called a shiUing. paired in order to make it pass, but in order

And the jury having so found it, the want to obtain some metal from the coin, and

of an impression was immaterial ; because, that it might nevertheless pass in ciroula-

from the impression being generally worn tion. The words in italics have therefore

out or defaced, it was notorious that the been substituted for those of the former

currency of the genuine coin of that denom- enactment. C. S. G.

ination was not thereby affected ; the (v) For other punishments, vide ante,

counterfeit therefore was perfect for cirou- p. 348.

lation, and possibly might deceive the more {w) This section was new in 1861.

CHAP. II.] Of Importing Counterfeit Coin. 353

any filings or clippings, or any gold or silver bullion, or any gold or
silver in dust, solution, or otkerwise, which shall have been produced
or obtained by impairing, diminishing, or lightening any of the King's
current gold or silver coin, knowing the same to have been so produced
or obtained, shall, in England and Ireland, be guilty of felony, and in
Scotland of a high crime and offence, and being convicted thereof shall
be liable ... to be kept in penal servitude for any term not exceeding
seven years . . .' (x).

Defacing Coin by Stamping Words thereon.— Sect. 16. ' Whosoever
shall deface any of the King's current gold, silver, or copper coin, by
stamping thereon any names or words, whether such coin shall or shall
not be thereby diminished or lightened, shall, in England and Ireland,
be guilty of a misdemeanor, and in Scotland of a crime and offence,
and being convicted thereof shall be liable, at the discretion of the Court,
to be imprisoned for any term not exceeding one year, with or without
hard labour ' (y).

Tender of Coin so Defaced not Legal.— Sect. 17. ' No tender or pay-
ment in money made in any gold, silver, or copper coin so defaced by
stamping as in the last preceding section mentioned shall be allowed to
be a legal tender ; and whosoever shaU tender, utter, or put off any coin
so defaced shall, on conviction thereof before two justices, be liable to
forfeit and pay any sum not exceeding forty shillings ; Provided that
it shall not be lawful for any person to proceed for any such last-mentioned
penalty without the consent, in England or Ireland, of His Majesty's
Attorney-General for England or Ireland respectively, or in Scotland
of the Lord Advocate ' (2).

Sect. V. — Of Importation of Counterfeit Coin.

Counterfeit British Coin.— By 24 & 25 Vict, c.99, s. 7 (a), ' Whosoever,
without lawful authority or excuse {the proof whereof shall lie on the party

(x) For other punishments, vide anie, must be by proclamation, or by writ under

p. 348. the great seal. And the money, the bringing

iy) Taken from 16 & 17 Vict. c. 102, s. 1, in of which was prohibited by 25 Edw.

which contained the words ' or shalj use III. st. 5, u. 2, and 1 & 2 Ph. & M. c. 11

any machine or instrument for the purpose (rej ip. ), must be brought from some foreign

of bending the same,' but it was considered place out of the King's dominions into

that this provision was much too compre- some place within the same (1 East, P.O.

hensive, and therefore it was omitted. 175), and not from Ireland or some other

C. S. G. place subject to the Crown of England, for

. (z) Taken from 16 & 17 Vict. o. 102, s. 2. though to some purposes they are distinct

(a) Taken from 2 & 3 Will. IV. c. 34, s. 6, from England, yet as the counterfeiting

with the alterations and additions italicised. was punishable there as much as in

As to the first words in italics, see s. 6, post, England, the bringing money from such

p. 364. The words ' or receive ' were added places was not within those Acts (1 Hawk,

to cover oases where the evidence was insuf- c. 17, s. 87). It may be observed also that

ficient to prove that the receiver had im- these Acts were confined to the importer

ported the coin. The section appears to (using the word ' bring '), and did not

apply to importation from any place be- extend to a receiver at second hand ; and

yond seas within or without the King's such importer must also have been averred

dominions. Under 1 & 2 Ph. & M. c. II (rep.) and proved to have known that the money

it was held that the words ' false or counter- was counterfeit. 1 Hale, 227, 228, 317;

feit coin or money being current within 1 Hawk. c. 17, ss. 86, 88 ; 1 East, P.C.

this realm,' referred to gold and silver coin c. 4. It seems not to have been necessary

of foreign realms, current here by the under 25 Edw. III. s. 5, o. 2, to prove that

sufferance and consent of the Crown, which false money was actually paid away or

2 A

354 Of Offences Relating to the Revenue, &c. [book iv.

accused), shall import or receive into the United Kingdom from beyond
the seas any false or counterfeit coin resembling or apparently intended to
resemble or pass for any of the King's current gold or silver coin, knowing
the same to be false or counterfeit, shall, in England and Ireland, be guilty
of felony, and in Scotland of a high crime and offence, and being
convicted thereof shall be liable ... to be kept in penal servitude for
Ufe . . . ' (6).

By 16 & 17 Vict. c. 48, s. 2, ' If any person shall import into any of His
Majesty's Colonies or possessions abroad any false or counterfeit coin
resembling or apparently intended to resemble or pass for any of His
Majesty's current gold or silver coin coined in any of His Majesty's Mints,
whether in the United Kingdom or elsewhere, knowing the same to be
false or covmterfeit, he shall be Uable ... to be transported for life ' (c).

By the Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36), ss. 150-
151, the importation of base or counterfeit coin (by sea or land carriage)
into Mauritius and the British possessions in America is absolutely
prohibited.

By the Kevenue Act, 1889 (52 & 53 Vict. c. 42), imitation coin is
included in the table of goods prohibited and restricted under the Customs
Consolidation Act, 1876 {vide post, p. 374) .

Importing Foreign Counterfeit Gold or Silver Coin. — By sect. 19 (d),
' Whosoever, without law'ul authority or excuse {the proof whereof shall
lie on the party accused), shall bring or receive into the United Kingdom (e)
any such (/) false or counterfeit coin resembling or apparently intended
to resemble or pass for any gold or silver coin of any foreign prince, state,
or country, knowing the same to be false or counterfeit, shall, in England
and Ireland, be guilty of felony, and in Scotland of a high crime and
offence, and being convicted thereof shall be liable ... to be kept in
penal servitude for any term not exceeding seven years . . . ' {g).

By sect. 2 of the Customs Amendment Act, 1886 (49 & 50 Vict. c. 41),
power is given to His Majesty to make and revoke proclamations
prohibiting the importation into the United Kingdom of coins coined in a
foreign country specified in the proclamation. Such coins during the
currency of the proclamation are treated as prohibited goods within the

merchandised with. 1 Hawk. c. 17, s. 89. ing. It seems that 37 Geo. III. c. 126, did
Coke and Hale seem to have thought not provide for the case of a person collect-
differently. 3 Co. Inst. 18 ; 1 Hale, 229. ing the base money therein mentioned from
But see 1 East, P.C. 175, 176, where it is the vendors of it in this country, with
said that though the best trial and proof of intent to utter it within the realm, or the
an intent may be by the act done, yet it dominions of the realm. See 1 East, P.C.
may also be evinced by a variety of circum- 177. ' Bringing ' over counterfeit foreign
stances, of which the jury are to judge. coin was treason within 1 & 2 Ph. & M. c. 11
(6) For other punishments, vide ante, (rep.). 1 Hawk. o. 17, s. 89. The Act of
p. 348. 1861 has neither the words ' to merchan-

(c) This enactment applies to a colony disc or make payment,' which were in 25
only so far as provision is not made by local Edw. III. st. 5, c. 2, nor the words ' to the
legislation (ss. 3, 4). intent to utter or make payment with the

(d) Framed on 37 Geo. III. o. 126, s. 3, same,' which were in 1 & 2 Ph. &. M. u. 11.
omitting the words ' with intent to utter the The crime, therefore, seems now to consist
same,' which were in the former statute. in importing counterfeit coin knowing it to
From the words of the present Act (s. 19), be counterfeit. C. S. G.

an importation of counterfeit foreign coin, (e) See note to s. 6, post, p. 364.

with a knowledge that it is counterfeit, is (/) See s. 18, ante, p. 352.

clearly sufficient, without any actual utt^r- {g) For other punishments, vide ante, p. 348.

CHAP, n.] Of Exporting Counterfeit Coin. 355

Customs Consolidation Act, 1876 (h). Under this enactment a procla-
mation has been issued prohibiting the importation into the United
Kingdom of all coins coined in a foreign country other than gold or
■silver (March 27, 1887. St. E. & 0. Revised (ed. 1904), Vol. II. tit.
' Coin,' 49).

Sect. VI. — Of Expokting Counterfeit Cuerent Coin,

By sect. 8, ' Whosoever, without lawful authority or excuse (the
proof whereof shall lie on the party accused), shall export, or put on
board any ship, vessel, or boat for the purpose of being exported from
the United Kingdom, any false or counterfeit coin, resembling or
apparently intended to resemble or pass for any of the King's current
coin, knowing the same to be false or counterfeit, shall, in England and
Ireland, be guilty of a misdemeanor, and in Scotland of a crime and
offence, and being convicted thereof shall be liable, at the discretion of
the Court, to be imprisoned for any term not exceeding two years, with
or without hard labour . . . ' (i).

The definition of current coin includes the coin of British possessions
and protectorates as well as coin of the realm (/).

Sect. VII. — Of Uttering, Tendering, &c., Counterfeit Coin.
A. Common Law and Former Statutes.

Formerly the putting ofi counterfeit money might amount to treason.
Thus if A. counterfeited current gold or silver com, and by agreement
before that counterfeiting B. was to put off and vend the counter-
feit money, B. was an aider and abettor to such counterfeiting, and
consequently liable as a principal traitor (k). In the case of copper
coin, B. acting a similar part was an accessory before the fact to the
felony, within 11 Geo. III. c. 40 (l). And if B., knowing that A.
had counterfeited coin, put off this false coin for him ' after the fact,'
without any such agreement precedent to the counterfeiting, he seems to
have been liable as an accessory after the fact to A., because he maintains
him (m). According to Coke (n), if money, false or clipped, were found in
the hands of any suspicious person, he might be imprisoned until he proved
his warrant per statutum de moneta (20 Edw. I. stats. 4, 5, 6 (rep.) ).

If A. counterfeited the King's money, and B. knowing the money to
be counterfeited uttered the same for his own benefit, B. was not guilty
of treason, nor misprision of treason. But he was liable at common law
to be punished as for a cheat (o). The defendant was indicted for

{h) Post, p. 374. punishable under 15 Geo. II. c. 28 (rep.),

(i) This section was new in 1861. See precedents of indictments for a mis-

(j) See the interpretation clause, ante, demeanor at common law in uttering a,

p. 344. counterfeit haU-guinea : Cro. Circ. Comp.

(k) 1 Hale, 214. 315 {7th ed.) ; 2 Chit. Cr. L. 116. See also

(I) 1 East, P.O. 178. a precedent of an indictment for a misde-

(m) 1 Hale, 214. Concealment by B. meanor at common law, against a man for

of counterfeiting by A. was misprision of uttering a counterfeit sixpence, and having

treason. Hale, 214. another found in his custody : Cro. Ciro.

(m) 3 Inst. 18. Comp. 315 (7th ed.) ;'«2 Chit. Cr. L. 117.

(o) 1 East, P.O. 179 ; 1 Hale, 214 ; The uttering of false money, knowing it to

1 Hawk. c. 17, s. 56. The offence was be false, is mentioned as a misdemeanor in

2 a2

356 Of Offences against the Revenue, <&c. [book iv.

' unlawfully uttering and tendering in payment to T. H. ten counterfeit
halfpence, knowing them to be counterfeit.' One count laid the offence
as contrary to the statute, a second count laid the offence generally. He
was convicted on the second count. It was admitted that no statute
appUed to the case of counterfeit copper coin, and on a case reserved all
the judges held the offence not to be indictable {p).

Possession of counterfeit coin of the realm with intent to utter it is
not an offence at common law {q) . But the unlawful procuring of counter-
feit coin with intent to circulate it, though no act of uttering be proved,
is a misdemeanor at common law (r), and the possession of counterfeit
coin under suspicious circumstances, and without any circumstances to
induce a belief that the defendant was the maker, was held to be evidence
of unlawful procuring with intent to utter (s). Upon the argument in
R. V. Fuller (s), Thomson, C.B., mentioned a case where he had directed
an acquittal, because from certain powder found upon the prisoner, there
was a presumption that he was the maker of the coin.

B. Of Uttering or Possessing Counterfeit British Coin.

Uttering Counterfeit Gold or Silver Current Coin. — By sect. 9, 'Whoso-
ever shall tender, utter, or put off any false or counterfeit coin, resembling
or apparently intended to resemble or pass for any of the King's current
gold or silver coin, knowing the same to be false or counterfeit, shall, in
England and Ireland, be guilty of a misdemeanor, and in Scotland of a
crime and offence, and being convicted thereof shall be liable, at the
discretion of the Court, to be imprisoned for any term not exceeding
one year, with or without hard labour . . .' (t).

the recital to 15 Geo. II. c. 28, s. 2 (rep.). twenty shillings, wrapped up with soft paper

There is also a precedent for a misdemeanor to prevent then- rubbing. In the marginal

at common law, in uttering, and causing to note to R. v. Parker, 1 Leach, 41, it is stated

be uttered as good, guineas which had been that having the possession of counterfeit

tiled or diminished : Cro. Giro. Comp. 317 money with intention to pay it away

(7th ed.), and 2 Chit. Cr. L. 116 ; and also as and for good money, is an indictable

a precedent for a misdemeanor at common offence at common law. This may be

law in selling counterfeit Dutch guilders ; criminal in some cases of such possession,

Cro. Giro. Comp. 313 (7th ed.) ; 2 Chit. as we have seen above ; hnt, qucere, ii the

Cr. L. 119, 120. point, as stated in the marginal note, was

(p) R. V. Cirwan [1794], MS. Jud. ; 1 actually decided in Parker's case. See also

East P.C. 182 ; 2 Leach, 834, note (a). R. v. Jarvis, Dears. 552, post, p. 362.

(5) R. V. Heath [1810], R. & R. 184. R. («) Taken from 2 Will. IV. c. 34, s. 7.

V. Stewart [1814], R. & R. 288 (silver coin). For other punishments, vide ante, p. 348.

R. V. Cirwan [1794], 2 Leach, 834n. (copper Under 8 & 9 Will. III. c. 26, s. 6 (rep.), which

Qoixi), had the words 'take, receive, pay, or put off,'

(r) R. V. Fuller [1816], R. & R. 308, it was necessary to prove actual passing of

and MS. Bayley, J. In R. v. Brown, the money. R. v. Wooldridge, 1 Leach,

1 Lew. 42, upon an indictment for pro- 307; 1 East, P.C. 179. The word ' tender '

curing counterfeit money with intent to in the present Act obviates the need of

utter it, the uttering the money, knowing proving actual passing. C. S. G. Under 2

it to be counterfeit, was held evidence & 3 Will. IV. c. 34, s. 7 (rep.), it was held that

that it was procured with that intent. a charge of uttering and putting off was

Hohoyd, J., there seemed to consider a proved by evidence that the prisoner had

procurement elsewhere, with intent to entered a shop, and had asked for tea and

utter a continuing procurement in the sugar, and had in payment placed on the

county where the uttering took place. counter a counterfeit shilling, but on being

(s) R. V. Fuller [1816], R. & R. 308. The told that it was bad, had left the shop and

possession in this case was under particularly left the coin behind. R. v. Welch, 2 Den.

suspicious circumstances; on the prisoner 78. Cf. R. v. Ion, ibid. 475.

were

found two parcels, each containing

CHAP. II. ] Of Uttering Counterfeit Coin of the Realm. 357

The words ' tender, utter, or put off,' being in the disjunctive, appear
to apply to blie uttering of counterfeit money though not tendered in
payment, but passed by the common raicfc of rimglnajhe changes (m).

Uttering Counterfeit Gold or Silver Current Coin aecoinpani«i ajl
Possession of other such Coin, or followed by a Second Uttering of other
such Coin. — Sect. 10. ' Whosoever shall tender, utter, or put off any false
or counterfeit coin resembling, or apparently intended to resemble or pass
for any of the King's current gold or silver coin, knowing the same to be
false or counterfeit, and shall, at the time of such tendering, uttering, or
putting off, have in his custody or possession, besides the false or counter-
feit coin so tendered, uttered, or put off, any other piece of false or
counterfeit coin resembling or apparently intended to resemble or pass
for any of the King's current gold or silver coin, or shall, either on the
day of such tendering, uttering, or putting off, or within the space of ten
days then next ensuing, tender, utter, or put off any false or counterfeit
coin resembling or apparently intended to resemble or pass for any of
the King's current gold or silver coin, knowing the same to be false or
counterfeit, shall, in England and Ireland, be guilty of a misdemeanor,
and in Scotland of a crime and offence, and being convicted thereof shall
be liable, at the discretion of the Court, to be imprisoned for any term not
exceeding two years, with or without hard labour . . . ' (w).

Where one of two persons utters base coin, and other base coin is
found on the other, they are jointly guilty of the aggravated offence
under this section, if they are acting in concert, and the one knows of
the possession of the base coin by the other ; for by the interpretation
clause the having any coin in possession includes ' the knowing and
wilfully having it in the actual custody or possession of any other person ' ;
and as it is clear that under that clause a man may have possession of
coin in a house or other place, though he is far away, so the possession
of coin by one man may be the possession of another within that clause,
though they are at a great distance from each other {w).

Having Three or More Pieces of Counterfeit Gold or Silver Coin in
Possession, &c., with Intent, &c. — Sect. 11. ' Whosoever shall have in

(n) See R. v. Franks, 2 Leach, 644, de- in the same count of the indictment. See
cidedon 15 Geo. II. c. 28, s. 2 (rep.), which R. v. Martin [1801], coram Graham, B.,
had the words ' utter or tender in pay- decided by the judges on 15 Geo. II. c. 28
ment.' In that case the prosecutor having (rep.). 2Leach,923; lEast, P.C.xviii.; MS.
bargained for the purchase of sixpenny- Bayley, J. Convictions for separate utter-
worth of fruit from the defendant, a street ings on the same day, charged in separate
vendor, handed to the defendant a good counts of the indictment, do not seem
shilhng to change. The defendant put the to warrant such punishment. See R. v.
shilUng into his mouth as if to bite it, and Tandy, 2 Leach, 833. 1 East, P.C. 182,
returned a shilling to the prosecutor, saying 184 : decided on 15 Geo. II. c. 28
that it was bad. The prosecutor having (rep.). Eyre, C.J., BuUer, J., and Heath,
handed him a second and a third shilhng, J., were absent when this opinion was
the defendant practised the same trick as given, viz., Hil. T. 1799. The judges also
to each. thought it advisable to give judgment of

(v) Taken from 2 WiH. IV. c. 34, s. 7. imprisonment for six months singly, and

The words ' any other piece ' are substi- not on each of the counts. And see R, v.

tuted for ' one or more piece or pieces,' and Smith, 2 Leach, 856 ; 1 East, P.C. 183 ;

the words ' any false or counterfeit coin ' and R. ■;;. Robinson, 1 Mood. 413, decided

for ' any more or other false or counterfeit on 2 & 3 Will. IV. o. 34, s. 7 (rep.),
coin.' The words omitted are repealed. {w) R. v. Greenwood, 2 Den. 453, over

To warrant the punishment imposed by ruling R. v. Hayes, 1 Cox, 362 ; 2 Cox, 68 ;
this section, the utterings should be charged and R. v. West, 2 Cox, 237.

358 Of Offences against the Revenue, &c. [book iv.

his custody or possession three or more pieces of false or counterfeit
coin resembling or apparently intended to res'^mblo or pass for any of
the King's current, gold oi sUver coin, knowing the same to be false
^nr uuunterfeit, and with intent to utter or put ofi the same or any of
them, shall, in England and Ireland, be guilty of a misdemeanor, and
in Scotland of a crime and offence, and being convicted thereof shall
be liable ... to be kept in penal servitude . . .' {x).

Uttering after a Previous Conviction. — Sect. 12 [y). ' Whosoever having
been convicted {z), either before or after the passing of this Act, of any
such misdemeanor or crime and offence as in any of the last three pre-
ceding sections mentioned, or of any felony or high crime and offence
against this or any former Act relating to the coin, shaU afterwards commit
any of the misdemeanors or crimes and offences in any of the said sections
mentioned, shall, in England and Ireland, be guilty of felony, and in
Scotland of a high crime and offence, and being convicted thereof shall
be liable . . . to be kept in penal servitude for life . . .'(a).

Sect. 13. ' Whosoever shall, with intent to defraud, tender, utter,
or put off as or for any of the King's current gold or silver coin, any
coin not being such current gold or silver coin, or any medal or piece
of metal or mixed metals, resembling in size, figure, and colour the
current coin as or for which the same shall be so tendered, uttered, or
put off, such coin, medal, or piece of metal or mixed metals so tendered,
uttered, or put off being of less value than the current coin as or for
which the same shall be so tendered, uttered, or put off, shall, in England
and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and
offence, and being convicted thereof, shall be liable, at the discretion of
the Court, to be imprisoned for any term not exceeding one year, with
or without hard labour . . . ' (6).

The prisoner was indicted under this section for uttering a medal
resembling in size, figure, and colour, a half-sovereign. The medal was
made of metal, and of the same diameter as a half-sovereign, and somewhat
similar in colour. On the obverse there was the head of Queen Victoria,
similar to that on a half-sovereign ; but the legend was entirely different
from that on the half-sovereign, being ' Victoria, Queen of Great Britain,'

{x) Framed from 2 & 3 Will. IV. c. 34, conviction for felony than for such a mis-

ss. 7, 8, with the addition of the words in demeanor ; as the former might have taken

italics. Tor other punishments, see ante, place in the same county where the subse-

p. 348. Possession of counterfeit coin, quent offence was committed, but not the

with intent to utter, is not an offence at latter. As to the effect of s. 12 see R. v.

common law. R. v. Stewart, R. & R. 288. Lee, 72 J. P. 253.

R. V. Heath, R. & R. 184, denying R. v. (z) i.e., found guilty by verdict or con-

Sutton, cas. temp. Hardw. 370. fession, though not sentenced. R. b.

(y) Taken from 2 Will. IV. o. 34, sb. 7, 8: Blaby [1894], 1 Q.B. 170.

but those sections only applied to offences (a) For other punishments, vide ante,

committed after a conviction for a misde- p. 348.

meaner : but it was expedient to extend (t) This section was new law in 1861, and

the clause to convictions after a previous intended to meet oases of uttering coin

conviction for felony ; for such previous other than British current coin or medals

conviction rendered the offender deserving as and for the current coin of the realm,

of at least as high a punishment as if he had In order to bring a ease within this section,

been previously convicted of any misde- the coin or medal uttered must be of less

meanor mentioned in any of the three value than the coin for which it was uttered,

preceding sections, and it sometimes hap- and must have been uttered with intent to

pened that it was easier to prove a previous defraud.

(MAf. It.] Of Uttering Counterfeit Coin of the Realm. 359

instead of ' Victoria Dei Gratia.' The medal was queried, but the
querling was round and not square. The medal was of less value than a
half-sovereign. The coin was lost before a full description of it was given,
and it was never shewn to the jury. It was objected that ' figure ' in
the indictment meant the impression on the medal, and that such
impression must be similar to the impression on the genuine coin for
which it was uttered, and that there was no evidence that the medal
resembled the half-sovereign in size, figure, and colour. It was answered
that ' figure ' meant the general shape and outline of the medal, and that
there was evidence for the jury ; and the jury having convicted, it was
held, on a case reserved, that there was some evidence that the medal,
in size, figure, and colour resembled a half-sovereign (c).

Uttering Counterfeit Copper Coin. — Sect. 15. ' Whosoever shall tender,
utter, or put off any false or counterfeit coin resembling or apparently
intended to resemble or pass for any of the King's current copper coin,
knowing the same to be false or counterfeit, or shall have in his custody
or possession three or more pieces of false or counterfeit coin resembling
or apparently intended to resemble or pass for any of the King's current
copper coin, knowing the same to be false or counterfeit, and with intent
to utter or put off the same or any of them, shall, in England and Ireland,
be guilty of a misdemeanor, and in Scotland of a crime and ofEence,
and being convicted thereof shall be liable, at the discretion of the Court,
to be imprisoned for any term not exceeding one year, with or without
hard labour . . .' (d).

Form of Indictment. — The word 'knowing' in indictments for
uttering coin sufiiciently applies to the time and place of uttering, and
no addition of time or place is necessary. The word ' knowing ' refers
to the prisoner, and not to the person to whom the coin was uttered,
although that person's name immediately precedes the word ' knowing.'

If the names of the persons to whom the coin was uttered can be
ascertained, they ought to be mentioned, and laid severally in the indict-
ment : but if they cannot be ascertained, the same rule will apply which
prevails in the case of stealing the property of persons unknown (e).

It is sufiicient, in an indictment for a felony for uttering counterfeit
coin after a previous conviction, to state that the prisoner was in due
form of law tried and convicted by a jury ■(/').

id) Taken from 2 & 3 Will. IV. o. 34, ment, which was under 2 & 3 WiU. IV.

s. 12. The words omitted are repealed. c. 34, s. 7, for uttering counterfeit money

(e) See 1 East, P.O. 180, citing a case after a previous conviction, alleged that the

from MS. Tracy, of a woman who was in- prisoner, ' together with one T. P., was in

dieted at the Old Bailey, 1702, for putting due form of law tried and convicted ' by a

off ten pieces of counterfeit gilt money like jury upon an indictment against them, for

guineas, to divers persons unknown ; Holt, that they did unlawfully utter a shiUing

C.J., said, that the names of the persons ' to A. W., knowing the same to be false,'

ought to be mentioned and laid severally ; and thereupon it was considered that the

yet he tried the prisoner, and she was con- prisoner should be imprisoned for two

victed. Probably the names of the persons years ; and that the prisoner afterwards

to whom the money was put off could not feloniously did utter a half-crown ' to T. H.,

be ascertained. knowing the same to be false.' The copy

(/ ) 24 & 25 Vict. c. 99, s. 37. R. v. of the record of the former trial stated the

Blaby [1894], 1 Q.B. 170. R. v. Page conviction of the prisoner and the acquittal

[1841], Coleridge, J., MSS. C. S. G., and of T. P. It was objected, 1st. That the

360 Of Offences against the Revenue, &c. [book iv.

It is no objection that an indictment for felony,for uttering counterfeit
coin after a previous conviction, states tliat the prisoner, together with
another person, was tried and convicted; and the record of the former trial
shews the conviction of the prisoner and the acquittal of the other person.

Sect. 37. ' Where any person shall have been convicted {g) of any
offence against this Act, or any former Act Qi) relating to the coin, and
shall afterwards be indicted for any offence against this Act committed
subsequent to such conviction, it shall be sufficient in any such indict-
ment, after charging such subsequent offence, to state the substance and
effect only (omitting the formal part) of the indictment and conviction for
the previous offence ; . . . Qih) and the proceedings upon any indictment
for committing any offence after a previous conviction or convictions
shall be as follows ; (that is to say), the offender shall, in the first instance,
be arraigned upon so much only of the indictment as charges the subse-
quent offence, and if he plead not guilty, or if the Court order a plea
of not guilty to be entered on his behalf {i), the jury shall be charged,
in the first instance, to inquire concerning such subsequent offence only ;
and if they find him guilty, or if on arraignment he plead guilty, he shall
then, and not before, be asked whether he had been previously con-
victed as alleged in the indictment, and if he answer that he had been so
previously convicted, the Court may proceed to sentence him accordingly;
but if he deny that he had been so previously convicted, or stand mute
of malice, or will not answer directly to such question, the jury shall
then be charged to inquire concerning such previous conviction or con-
victions, and in such case it shall not be necessary to swear the jury again,
but the oath already taken by them shall for all purposes be deemed
to extend to such last-mentioned inquiry : provided that if upon the trial
of any person for any such subsequent offence such person shall give
evidence of his good character, it shall be lawful for the prosecutor, in

indictment was bad for want of an addition that the prisoner alone had been convicted
of time and place to the allegation of know- and T. P. acquitted, and therefore there
ledge, which was to be found neither in the was a variance ; the learned judge over-
recital of the former indictment, nor in ruled this objection also, but entertaining
the substantive charge on the face of the some doubt upon the point, he reserved the
present indictment ; but the learned judge case for the opmion of the judges, who held
thought that the former indictment was the conviction right. Coleridge, J., stated
good, being in the words of the statute and the other points to the judges, that the
after verdict ; and that ' knowing ' in the prisoner might have the benefit of them, if
present indictment, being a participle in he had been wrong in overruling them,
the present tense, must import knowledge (?) i.e., by verdict or plea of guilty, even
at the time of the uttering. 2ndly. That if no sentence was pronounced. R. v.
the word ' knowing ' did not refer to the Blaby [1894], 1 Q.B. 170.
prisoner, but to A. W. and T. H. ; but (h) The questions discussed in former
Coleridge, J., thought that ' knowing ' did editions as to offences under statutes prior
refer to the prisoner, as all that was alleged to 1861, are now by lapse of time rendered
to be done was alleged to be done by him. of no importance. See R. v. Montrion,
3rdly. That the indictment did not state 9 Cox, 27. Anon., 9 Cox, 28, Byles, J.
any former conviction, because neither the As to effect of repealing clauses on offences
plea nor the verdict of the jury was recited ; committed before the repeal operates, vide
but the learned judge thought that the ante, pp. 6, 7. And see Greaves Ci-im. L.
allegation that he had been in due course of Cons. Acts (2nd ed.), 199.
law tried and convicted, together with a (hh) For words here omitted, vide post,
statement of the judgment, was sufficient. p. 363.

4thly. That the recital of the former record (i) Under 7 & 8 Geo. IV. c. 28, s. 2 (E),

shewed a conviction of the prisoner and or 9 Geo. IV. c. 54, a. 8 (I).
T. P., whereas the record produced shewed

CHAP. II.] Of Uttering Counterfeit Coin of the Realm. 361

answer thereto, to give evidence of the conviction of such person for
the previous offence or offences, before such verdict of guilty shall be
returned, and the jury shall inquire concerning such previous conviction
or convictions at the same time that they inquire concerning such
subsequent offence' (/).

Where the indictment charged a felonious uttering after a previous
conviction, the jury found the prisoner guilty of the uttering but not
guilty of the previous conviction, it was held that this was a verdict
of not guilty of the felony charged, and that the prisoner could not be
convicted of the misdemeanor of uttering upon that indictment {h).

Evidence. — As to evidence of what is a current coin (Z), and coin
being counterfeit, and of possession, see ante, p. 344.

For the purpose of proving the uttering, &c., to have been done
knowingly, it is the practice to receive proof of more than one uttering
committed by the party about the same time, though only one uttering
be charged in the indictment. This is in conformity with the practice
upon indictments for disposing of and putting away forged bank notes,
knowing them to be forged (m) ; upon one of which the counsel for the
prisoners, objecting to such evidence, contended that it would not be
allowed upon an indictment for uttering bad money ; and stated that the
proof in such case was always exclusively confined to the particular utter-
ing charged in the indictment. But Thomson, B., said, that he by no
means agreed in the conclusion of the prisoners' counsel, that the prose-
cutor could not give evidence of another uttering on the same day to prove
the guilty knowledge. ' Such other uttering,' he observed, ' cannot be
punished until it has become the subject of a distinct and separate charge ;
but it affords strong evidence of the knowledge of the prisoner that the
money he uttered was bad. If a man utter a bad shiUing, and fifty other
bad shillings are found upon him, this would bring him within the descrip-
tion of a common utterer (n) : but if the indictment do not contain that
charge, yet these circumstances may be given in evidence on any other

ij) Under 2 & 3 Will. IV. o. 34 (rep. ), it was should not be mentioned, even by accident,

necessary in an indictment for a subsequent before a verdict of guilty of the subsequent

offence, to set out at length the previous offence had been delivered. C. S. G. This

indictment, &c., and to give in evidence a section is virtually superseded by 34 & 35

copy of that indictment, &c. This was Vict. c. 112, s. 9, post, Bk. xii. c. iii. For

found objectionable, and therefore the present procedure as to offences after

present enactment provided for a short previous convictions, see post, Bk. xii. o. iii.

statement in the indictment, and for a cer- {k) R. v. Thomas, L. B. 2 C. C. R. 141.

tificate containing the substance and effect The prisoner was in fact charged with and

of the former indictment, &c. ; it pro- tried for a felony, and the jury found him

vides for the proceedings on the arraign- guilty of a misdemeanor only,

ment, and in the same manner as on an (/) In R. v. Connell, 1 C. & K. 190, a

indictment for larceny after a previous modern fourpenny piece was held to be

conviction for felony. The words ' after sufiSciently described as a ' groat,' although

charging the subsequent offence ' were in- the value of the coin originally denominated

serted in order to render it absolutely a ' groat ' had greatly changed since such

necessary always to charge the subsequent coins were placed in currency, temp.

offence or offences first in the indictment, Edward III.

and after so doing to allege the previous (m) B. v. Whiley, 2 Leach, 983 ; 1 B. &

conviction or convictions. This was the P. (N. R.) 92. R. v. TattershaU [1801],

invariable practice on the Oxford Circuit, 2 Leach, 985, cit. R. v. Ball, 1 Camp. 325 ;

and the Select Committee of the Commons 2 Leach, 987n. ; and other cases, post,

were clear that it ought to be universally Bk. xiii. e. ii. ' Evidence.'

followed, so that the previous conviction (n) That is, within 15 Geo. IT. c. 28 (rep.)

362 Of Offences against the Revenue, dc. [book iv.

charge of uttering, to shew that he uttered the money with a knowledge
of its being bad ' (o). So, upon an indictment for uttering a counterfeit
shilling, the fact of five other counterfeit shillings having been found in
the prisoner's possession five days afterwards, has been held admissible
in order to shew guilty knowledge (p).

In order to prove guilty knowledge, both previous and subsequent
utterings of the same and of different kinds of coin are admissible. On an
indictment for uttering a counterfeit half-crown on the 12th of December,
that uttering was proved, and the uttering of another counterfeit half-
crown on the 11th of December, and evidence was admitted of an uttering
of a counterfeit shilling on the 4th of January, although it was objected
that a subsequent uttering of a different species of counterfeit coin was
not admissible to shew guilty knowledge at a prior time ; and it was held
that this evidence was properly received. In order to shew guilty know-
ledge, it would not be sufficient merely to prove some other dishonest
act ; but here the uttering of the bad silver was so connected with
the ofience charged, as to make the evidence of it admissible, although
the coin was of a different denomination ; and the difference of the
denomination goes to the weight of the evidence, but does not affect
its admissibility (q).

On an indictment on 2 Will. IV. c. 34, s. 8, for having in possession
counterfeit crowns and half-crowns with intent to utter the same, it
appeared that there were found in different pockets of the prisoner's
dress four counterfeit crowns, all electro-plated, of the same date and
same mould, each wrapped in a separate piece of paper : thirteen counter-
feit half-crowns, all electro-plated, of the same date and the same mould,
each wrapped in a separate piece of paper ; and fourteen counterfeit
shillings, aU electro-plated, of the same date and the same mould. The
prisoner said that they had been given him while gambhng, and that he
did not know that they were counterfeit : and it was held that there was
sufficient evidence to go to the jury that he knew that the coin was
counterfeit, and intended to utter it (r).

Intent. — The gist of the offence, as now defined, hes in the know-
ledge that the coin is counterfeit. Except in sect. 13, intent to defraud
is not a part of the definition of the said offence, and it is no longer essential
to prove that the uttering was done with intent to defraud the party
receiving the money, or with intent that that party should pass it as the
agent of the utterer. But to warrant a conviction there must be some
indication of a dishonest purpose (s) or mens rea (t).

(o) E. v. Whiley, 2 Leach, 983. more, on which she gave the woman the

(p) R. V. Harrison, 2 Lew. 118, Taunton, bad half-crown in question, telling her to

J., and Alderson, B. get what she could for her children : it was

(q) R. V. Foster, Dears. 456. held that, although in the statute there are

(r) R. V. Jarvis, Dears. 552. no words with respect to defrauding, yet in

(s) Upon an indictment on 2 Will. IV. the proof it is necessary to go beyond the

c. 34, 8. 7 (rep.), against husband and wife mere words of the statute, and to shew an

for uttering a counterfeit half-crown, it intention to defraud some person. There

appeared that a woman asked the female might be cases of a party giving a person a

prisoner to give her something, as her piece of counterfeit money, and at the same

children were without food, and the male time telling the person that it was bad, and

prisoner gave her twopence, and told her yet he would stfll be liable to be convicted

that his wife would give her something on an indictment like the present, if a case

CHAP, ii.] Of Uttering Counterfeit Foreign Coin. 363

Evidence of Previous Conviction.— By 24 & 25 Vict. c. 99, s. 37, ' . . .
and a certificate containing the substance and effect only (omitting the
formal part) of the indictment and conviction for the previous ofEence, pur-
porting to be signed by the Clerk of the Court or other officer having or
purporting to have the custody of the records of the Court where the
offender was first convicted, or by the deputy of such clerk or officer, shall,
upon proof of the identity of the person of the offender, be sufficient
evidence of the previous conviction, without proof of the signature or official
character or authority of the person appearing to have signed the same,
or of his custody or right to the custody of the records of the Court,
and for every such certificate a fee of six shillings and eightpence, and
no more, shall be demanded or taken . . . ' (m).

It is clear from the terms of the enactment that the certificate is
admissible without further proof if it appears to be in proper form [v).

If the prisoner, whether by himself or his counsel, attempts to prove
a good character for honesty, either directly, by caUing witnesses, or
indirectly, by cross-examining the witnesses for the Crown, the prosecu-
tion may give the previous conviction in evidence against the prisoner {w).
If, however, a witness for the prosecution were asked by the prisoner's
counsel some question, which has no reference to character, and he
happened to say something favourable to the prisoner's character, the
prisoner would not be said to give evidence as to his character, and the
previous conviction ought not to be admitted {x).

C. Of Uttering, Tendering, <&c.. Foreign Counterfeit Coin, &c.

By 24 & 25 Vict. c. 99, s. 20, ' Whosoever shall tender, utter, or put
off any such false or counterfeit coin resembling or apparently intended
to resemble or pass for any gold or silver coin of any foreign prince, state,
or country {y), knowing the same to be false or counterfeit, shall, in

falling within the mere words of the statute that R. o. Page ia overruled, and that ' the

were sufficient. R. v. Page, 8 C & P. 122. intent is inferred by law,' in like manner as

' As every person is taken to intend the ' if a forged instrument is put away in order

probable consequence of his act, and as the to get money or credit, that amounts to an

probable consequence of giving a piece of uttering.'

bad money to a beggar is that that beggar (f) Vide ante, Bk. i. u. iv. p. 101.

will pass it to some one else, and thereby (u) As to alternative modes of proof, see

defraud that person ; quaere, whether this •post, Bk. xii. u. iii. and Bk. xiii.

case rests upon satisfactory grounds ? In (v) In R. v. Whale, 1 Cox, 69 ; R. v.

any case a party may not be defrauded by Stone, ibid. 70, Cress well, J., is reported as

taking base coin, as he may pass it again, having held that, where a certificate was

but still the probability is that he wfil be produced purporting to be signed by a

defrauded, and that is sufficient.' C. S. G. clerk of the peace, there must be some

But where on an indictment for uttering evidence in addition that the certificate is

counterfeit coin, it appeared that the priso- genuine and comes from the proper custody,

ner had given the coin to a girl with whom as by proof of the handwriting, or that the

he had had connection, Denman, C.J., and document came from the office of the clerk

Coltman, J., held that if the prisoner gave of the peace. These cases are very prob-

the coin to the girl under the circumstances ably misreported, as it is quite clear that no

proved, knowing it to be counterfeit, he such evidence is required, and the universal

was guilty of the offence charged ; that the practice has been to the contrary. C. S. G.

preceding decision was not in point, as that {w), R. v. Shrimpton, 2 Den. 319. R. u.

was a case of charity ; but that there were Gadbury, 8 C. & P. 676.

great doubts as to the correctness of that (x) R. v. Shrimpton, uhi sup., Campbell,

ruling. Anon., 1 Cox, 250. And in R. v. C. J.

Ton, 2 Ben. 484, it was said by Alderson, B., (y) See s. 18, ante, p. 352.

364 Of Offences against the Revenue, c^c. [book IV.

England and Ireland, be guilty of a misdemeanor, and in Scotland of a
crime and offence, and being convicted thereof shall be liable, at the
discretion of the Court, to be imprisoned for any term not exceeding six
months, with or without hard labour ' (2;).

Sect. 21. ' Whosoever, having been so convicted as in the last
preceding section mentioned, shall afterwards commit the like offence of
tendering, uttering, or putting off any such false or counterfeit coin as
aforesaid, knowing the same to be false or counterfeit, shall, in England and
Ireland, be guilty of a misdemeanor, and in Scotland of a crime and offence,
and being convicted thereof shall be liable, at the discretion of the Court,
to be imprisoned for any term not exceeding two years, with or without
hard labour, [and with or without solitary confinement (a) ;] and who-
soever, having been so convicted of a second offence, shall afterwards
commit the like offence of tendering, uttering, or putting off any such
false or counterfeit coin as aforesaid, knowing the same to be false or
counterfeit, shall, in England and Ireland, be guilty of felony, and in
Scotland of a high crime and offence, and being convicted thereof shall be
liable ... to be kept in penal servitude for life . . . '(b).

Sect. VIII. — Of Buying, Selling, Eeceiving, or Paying for Counter-
feit Coin at a Lower Eate than its Denomination Imports.

Gold or Silver Coin. — By sect. 6, ' Whosoever, without lawful authority or
excuse {the proof whereof shall lie on the party accused), shall buy, sell,
receive, pay, or put off, or offer to buy, sell, receive, pay, or put off, any
false or counterfeit coin resembling or apparently intended to resemble
or pass for any of the King's current gold or silver coin at or for a lower
rate or value than the same imports or was apparently intended to import,
shall, in England and Ireland, be guilty of felony, and in Scotland of a
high crime and offence, and being convicted thereof shall be liable . . .
to be kept in penal servitude for life . . . (c) ; and in any indictment for
any such offence as in this section aforesaid it shall be sufficient to allege that
the party accused did buy, sell, receive, pay, or put off, or did offer to buy,
sell, receive, pay, or put off the false or counterfeit coin at or for a lower rate or
value than the same imports or was apparently intended to import, without
alleging at or for what rate, price, or value the same was bought, sold,
received, paid, or put off, or offered to be bought, sold, received, paid, or put
off' id).

(2) Framed from 37 Geo. III. c. 126, s. 4, (c) As to omitted parts and substituted

with such alterations in its terms as to punishments, see ante, p. 348.

make it correspond with the rest of this (d) Taken from 2 Will. IV. c. 34, s. 0,

Act. with the additions and substitutions itali-

(a) As to solitary confinement, see ante, cised. The words ' without lawful autho-

p. 214. rity,' &c., were introduced in order to pro-

(6) Framed from 37 Geo. III. c. 126, s. 4. teot officers and others who are authorised

As to other punishments, vide ante, p. 348. to buy or procure false coin in order to

As to the indictment and proceedings, see detect coiners. In the repealed enactment

H. 37, ante, p. 360. Having in custody a there was no qualification. The words

greater number than five pieces of counter- ' apparently intended to import ' are sub-

feit foreign coin, whether current here or stituted for ' or was coined, or counterfeited

not, makes the party liable to punishment for.' The last part of the section renders

by proceedings before a justice of the peace, it unnecessary to allege the sum for which

under s. 23 of the statute. the coin was bought, &c., and consequently

CHAP. II.] Of the Making, &g.. Instruments for Coining. 365

Copper Coin.— By sect. 14, 'Whosoever . . . (e) shall buy, sell,
receive, pay, or put ofi, or offer to buy, sell, receive, pay, or put off any
false or counterfeit coin resembling or apparently intended to resemble
or pass for any of the King's current copper coin, at or for a lower rate
or value than the same imports or was apparently intended to import,
shall, in England and Ireland, be guilty of felony, and in Scotland of a
high crime and offence, and being convicted thereof shall be liable ... to
be kept in penal servitude for any term not exceeding seven years . . .' (/).

The mere vending of the coin was not considered to come within 8 & 9
Will. III. c. 26, s. 6 (rep.), unless it were done at a lower value than
the coin imported (g). The mode of stating the lower value in indict-
ments under the present enactments is regulated bv the latter part of
sect. 13 of the Act of 1861.

If the names of the persons to whom the money was put off can be
ascertained, they ought to be laid in the indictment ; but if they cannot
be ascertained the same rule applies as in stealing the property of persons
unknown (h).

Sect. IX.— Of the Making, Mending, or Having in Possession any
Instruments for Coining.

In E. V. Sutton (2 Str. 1074 ; cas. temp. Hardw. 370), it was said that
the possession of tools for coining with intent to use them was a mis-
demeanor at common law. But in E. v. Heath (*') this decision was said
to be untenable.

By 24 & 25 Vict. c. 99, s. 24, ' Whosoever, without lawful authority
or excuse (the proof whereof shall lie on the party accused), shall knowingly
make or mend, or begin or proceed to make or mend, or buy or sell, or
have in his custody or possession, any puncheon (/), counter-puncheon,
matrix, stamp, die, pattern, or mould (k), in or upon which there shall be

whatever the evidence on that point may tioned by Hale (1 P.O. 184), that the

be, there can be no variance between it and omitting the inscription on the true seal of

the allegation in the indictment, and all state would not take the case out of the

that need be proved is that the coin was statute. See R. v. Robinson, 2 RoUe Rep.

bought, &c., at some lower rate or value .50; 1 East, P.O. 86.

than it imports. Under 2 & 3 WUl. IV. {k) Mould was specifically mentioned in

u. 34, s. 7, it was necessary to aver and one clause of 8 & 9 Will. III. c. 26, s. I, and

prove the sum for which the coin was was held to fall within the words ' or other

bought, &o. R. V. Joyce, Carr. Supp. 184. tool or instrument hereinbefore mentioned '

R. V. Hedges, 3 C. & P. 410. used in a later clause. R. v. Lennard

(e) For the portion of this section which [17721, 1 Leach, 90 ; 2 W. Bl. 807 ; 1 East,

relates to counterfeiting copper coin, see P.O. 170. Upon the form of the indict-

ante, p. 350. And for the portion relating ment the question was raised, whether the

to coining tools, see post, p. 367. mould which was found in the prisoner's

(/) Taken from part of 2 Will. IV. u. 34, custody, it having only the resemblance of

s. 12. As to other punishments, see ante, a shilling inverted, viz., the convex parts of

p. 348. As to the words in italics, see the shilling being concave in the mould,

remarks on s. 6, ante, p. 364. and vice versa, the head or profile being

((?) 1 East, P.O. 180. turned the contrary way of the coin, and

(h) Ibid. all the letters of the inscription reversed,

(i) [1810] R & R. 184. was not properly an instrument which

(ji It is enough if the puncheon, &c., will would make and impress the resemblance,

impress a resemblance, whether exact or stamp, &c., rather than an instrument on

not, to the genuine coin such as would which the same were made and impressed,

impose upon the world. R. v. Ridgelay as laid in this indictment, the statute seem-

[1778], 1 Leach, 189. Of. the cases men- ing to distinguish between such as will

366 Of Offences against the Revenue, &c. [book iv.

made or impressed, or which will make or impress, or which shall be
adafted and intended to make or impress, the figure, stamp, or apparent
resemblance of both or either of the sides of any of the King's current
gold or silver coin, or of any coin of any foreign prince, state, or country (l),
or any part or parts (m) of both or either of such sides ; or shall make or
mend, or begin or proceed to make or mend, or shall buy or sell, or have
in his custody or possession, any edger, edging or other tool, collar {n),
instrument, or engine adapted and intended for the marking of coin round
the edges with letters, grainings, or other marks or figures apparently
resembling those on the edges of any such coin as in this section afore-
said, knowing the same to be so adapted and intended as aforesaid ; or
shall make or mend, or begin or proceed to make or mend, or shall buy
or sell, or have in his custody or possession, any press for coinage (o), or
any cutting engine for cutting, by force of a screw or of any other contriv-
ance, round blanks out of gold, silver, or other metal or mixture of metals,
or any other machine, knowing such press to be a press for coinage, or
knowing such engine or machine to have been used, or to be intended to
be used, for or in order to the false making or counterfeiting of any such
coin as in this section aforesaid, shall, in England and Ireland, be guilty
of felony, and in Scotland of a high crime and offence, and being convicted
thereof shall be liable . . . to be kept in penal servitude for life . . . ' (p).
Conveying Tools or Monies out of the Mint without Authority. — Sect.
25. ' Whosoever, without lawful authority or excuse (the proof whereof
shall lie on the party accused), shall knowingly convey out of any of His
Majesty's mints any puncheon, counter-puncheon, matrix, stamp, die,
pattern, mould, edger, edging or other tool, collar, instrument, press, or
engine used or employed in or about the coining of coin, or any useful part
of any of the several matters aforesaid, or any coin, bulUon, metal, or
mixture of metals, shall, in England and Ireland, be guilty of felony, and
in Scotland of a high crime and offence, and being convicted thereof shall
be liable ... to be kept in penal servitude for Ufe . . . ' (q).

make and impress the similitude, &c., as the (to) These words, which were in 2 & 3

matrix, die, and mould ; and such on Will. IV. c. 34, s. 10, were held to apply to

which the same is made and impressed, as a cases where several moulds were used to

puncheon, or counter-puncheon, or pattern. make one side of a coin. R. v. Richmond,

But a great majority of the judges were 1 C. & K. 240, Rolfe, B. In R. v. Macmil-

of opinion that this evidence sufficiently Ian, 1 Cox, 41, Maule, J., held that the

maintained the indictment; because the words 'part or parts' refer to the impression,

stamp of the current coin was certainly and not to the mould itself,
impressed on the mould in order to form (n) 8 & 9 Will. III. u. 26, applied to

the cavities thereof. They agreed, how- collars and instruments newly invented

ever, that the indictment would have been after its passing. R. v. Moore, 1 Mood,

more accurate had it charged that ' he had 122.

in his custody a mould that would make (o) Presses, &c., were tools or instru-

and impress the similitude,' &c., and in this ments within 8 & 9 WiU. III. u. 26. R. v.

opinion some, who otherwise doubted. Bell, Fost. 430.

acquiesced. InR. v. Maomillan, 1 Cox, 41, (p) !Framed from 2 & 3 WiU. IV. c. 34,
Maule, J., seems to have ruled that a mould s. 10, and extended to tools for counter-
must be something with which a coin can felting foreign coin, and to tools and
be made, and to have directed an acquittal machines other than those specified in the
where a mould having a perfect impression former enactment, including tools for cut-
of one side of a shilUng, had no channel ting blanks out of mixed metals. For
through which the metal could run. other punishments, see ante, p. 348.

(I) These words provide for foreign coin (q) Taken from 2 & 3 WiU. IV. o. 34,

not dealt with by 8 & 9 WiU. III. c. 20. R. s. 11. As to other punishments, see ante,

V. Bell, 1 East, P.O. 169 ; Fost. 430. p. 348.

CHAP. II.] Of the Making, &c., Instruments for Coining. 367

Making or having Tools for Coining Copper.— Sect. 14. ' . . . Whoso-
ever, without lawful authority or excuse (the proof whereof shall lie on
the party accused), shall knowingly inake or mend, or begin or proceed
to make or mend, or buy or sell, or have in his custody or possession, any
instrument, tool, or engine adapted and intended for the counterfeiting
any of the King's current copper coin . . . shall, in England and Ireland,
be guilty of felony, and in Scotland of a high crime and offence, and
being convicted thereof shall be liable ... to be kept in penal servitude
for any term not exceeding seven years . . .' (r).

Lawful Authority or Excuse. — It has been decided upon sect. 24 that
the word ' excuse ' includes authority, and that it is unnecessary to allege
or prove any intent. The felony is knowingly to have possession of a
die, and the guilty knowledge required is that of being in possession of
the die, contrary to the provisions of the Act of ParHament, that is,
without lawful authority or excuse. A guilty intention to use the dies is
not necessary (s).

Where two galvanic batteries were found in the prisoner's house, with
white metal and other things plainly indicating that they had been used
for coining, and it was proved that counterfeit coin is electro-plated
before it is put in circulation, and that that is generally done by the aid
of galvanic batteries, it was held that the batteries were machines within
the meaning of this section if).

Innocent Agent. — ^Where a die calculated to make shillings is made
by an innocent agent, the party procuring him to make such die is the
principal. The prisoner was indicted under 2 & 3 Will. IV. c. 34, s. 10
(repealed and replaced by 24 & 25 Vict. c. 99, s. 24), for feloniously
making a die which would impress the resemblance of the obverse side
of a shilling. The prisoner applied to a die-sinker to sink four dies for
counters for two whist clubs, stating that it was their practice to play
with counters with one side resembling coins. The dies were to be
obverse in the one case head of Queen Victoria, as in the shilling ; in the
other the shilling as in coin, with wreath, &c. Eeverses the names of
the clubs. The die-sinker was directed to execute the prisoner's order.
The prisoner afterwards desired to have the two obverses finished first,
and they were so. When they were finished, they formed a die for the
coining of a shilling. For the prisoner, it was objected that he could
not be convicted, as he had not himself done anything in the making of
the die, and that he was not answerable in this form of charge for the
act of the die-sinker ; that the die-sinker having acted under the instruc-
tions of the Mint, no felony whatever had been committed, and that the
prisoner should have been indicted for a misdemeanor in inciting the
die-sinker to commit a felony. But, upon a case reserved, all the judges
present (except Cresswell) thought the die-sinker an innocent agent,
and held the conviction good (m).

Evidence." — On an indictment for having in possession a die made of

(r) Taken from part of 2 & 3 Will. IV. OfBoe Protection Act, 1884 (47 & 48 Vict.

c. 34, s. 12. As to other punishments, see c. 76, re-enacted as 8 Edw. VII. c. 48, s. 6 (5).
arde, p. 348. (<) P- •''■ Gover, 9 Cox, 282, The Common

(a) R. V. Harvey, L. E,. 1 0. C. R. 284 ; Serjeant, after consulting Keating, J.
46 L. J. M. C. 63. Cf.DickinstJ. Gill [1896], («) R. v. Bannen [1844], 2 Mood. 309.

2 Q.B. 310, decided on s. 7 of the Post As to innocent agents, w'rfe ante., p. 104.

368 Of Offences against the Revenue, &c. [book iv.

iron and steel, a witness who saw the die said it was made of iron ; another
witness, who had not seen it, said that dies were usually made of steel,
and that iron dies would not stand. It was held that this evidence
would support the indictment, for it was immaterial to the offence of
what the die was made, and proof of a die either of iron or steel, or both,
would satisfy charge {v).

The degree of resemblance to the real coin which the tools or instru-
ment must be capable of impressing in order to bring the case within
sect. 24, must be governed by considerations similar to those which
have been stated with respect to the counterfeit coin itself (w). Whether
the instrument in question be adapted and intended to impress the figure,
stamp, resemblance, or similitude of the coin current is a question for
the jury ; and it is clear, that the offence is not confined to ' an exact
imitation of the original and proper effigies of the coin ' (a;).

An indictment alleged in one count that a prisoner feloniously had
in his possession a mould ' upon which was impressed the figure and
apparent resemblance of one of the sides (that is to say) the obverse
side of the King's current coin called a shilling,' and in another count the
substituted word ' reverse ' for ' obverse.' The moulds when produced
appeared not to have a complete impression of the obverse and reverse
sides of a shilling, but only the outside rim, and a slight portion of the
other parts of the impression ; the entire impressions, however, appeared
to have been upon them at one time, but part had been obliterated. It
was held, that if the jury believed that no more than part of the impres-
sion was impressed upon the moulds while the prisoner was in possession
of them, he ought to be acquitted {y). But where an indictment charged
that the prisoner made a mould, which was intended to impress the
resemblance of the obverse side of a shilling, it was held sufficient to
prove that the prisoner made a mould, which would make a part of the
impression. One count charged the prisoner with making a mould,
' which said mould was intended to make and impress the figure and
apparent resemblance ' of the obverse side, and another the reverse
side, of a shilling ; the evidence being the same as in the former case ;
it was held, that the term ' intended ' did not mean in a state to make
an entire impression, and therefore if the prisoner had only begun to
make, the intention to make the whole might be inferred, though
only part was actually made, and consequently that the evidence was
sufficient (2;).

An indictment charging that the prisoner had in his possession a
mould ' upon which was made and impressed the figure ' of one of the
sides of a coin was held bad for not shewing that the figure was on the
mould at the time when the prisoner had it in his possession. The words
' then and there ' should be introduced before the word ' made ' {a).

(v) R. V. Oxford [1819], R. & B. 382, and (x) 1 East, P.O. 171.

MS. Bayley, J. B. v. PhiUips [1818], R. (y) R. v. Foster, 7 0. & P. 494, Patteson,

& R. 369. In proceedings under 8 & 9 J.

Will. III. 0. 26, it was not necessary to (z) R. v. Foster, 7 0. & P. 495, Patteson,

prove that coin was actually made with the J.

instrument. B. v. Ridgelay, 1 East, P.O. (a) R. ■;;. Richmond, 1 C. & K. 240,

172. Bolfe, B.

(t(i) See 1 East, P.C. 171, and ante, p. 351.

CHAP. II.] Of the Making, d;c., Instruments for Coining. 36^

W. and two other men and two women were indicted for having in
their possession a mould impressed with one side of a half-crown. W.
had occupied a house for a month, and the police one night went to the
house and found the other prisoners there. The men attaclced the
police, whilst the women snatched up something which they threw into
the fire. The police preserved part of this, which proved to be fragments
of a plaster of Paris mould of a half-crown, parts of which were still wet.
A quantity of plaster of Paris was found in a cupboard up stairs, with
several bottles of liquid. In a cupboard down stairs an iron ladle, such
as might have been used for melting metal, was found ; on the hearth
in one of the rooms up stairs was found a small portion of white metal
and some fragments of plaster of Paris moulds. Thirteen days before
W. had passed a bad half-crown ; but there was no evidence to shew
that it was made in the mould found in the house. The jury found that
W. knew that the mould was in the house. It was held that W. was
rightly convicted, as the mould was found in the house of which he was
the master, and that the evidence of the uttering of the half-crown by
him was rightly admitted to establish the scienter (b).

On an indictment against husband, wife, and boy aged ten years, for
having in possession a mould on which was impressed the obverse side
of a shilling, it appeared that the boy was apprehended whilst passing
a counterfeit half-crown, and on the officer going to the house where
he said he resided the husband was found in an upper room. In the
lower room the mould and various coining implements were found,
and whilst the officer was searching the wife came in, and soon after-
wards broke up a mould used in casting counterfeit shillings ; on her
counterfeit money was found, but none on her husband. Talfourd, J.,
held that as the husband occupied the room in which the mould was
found, prima facie he must be presumed to be in possession of what the
room contained ; but that presumption might be rebutted, and the
jury must consider all the circumstances, and see whether they satisfied
them that the trade was carried on there with his sanction. If they
were satisfied that the husband was in possession of the mould, they
ought to acquit the wife, as she could not in law be said to have any
possession separate from her husband ; but if they thought that the
criminality was on her part alone, and that he was entirely guiltless of
any participation in her conduct, she might be convicted. If they
thought she broke the mould to screen him from detection, that would
not affect the case. Either husband or wife might be convicted on this
evidence, but not both. As to the boy, it would be going too far to say
that he was a joint possessor with either of his parents (c).

The counterfeiting of foreign coin was then a felony under 37 Geo. Ill,
c. 126, s. 2, repealed and now represented by 24 & 25 Vict. c. 99, s. 18
ante, p. 352.

Procuring Dies with Intent to Counterfeit Foreign Coin. — An indict-
ment (d) contained one count charging the prisoner with unlawfully causing
to be made two dies, one of the obverse side, the other of the reverse

(6) R. V. Weeks, L. & C. 18. (d) Under 37 Geo. III. c. 126 (rep.),

370 Of Offences against the Revenue, &c. [book iv.

side of a silver half-dollar of Peru, with intent feloniously to make counter-
feit Peruvian half-dollars, another count charging him with attempting
feloniously to coin by making the dies, with intent to use them in coining
such counterfeit coins. From the evidence it appeared that the prisoner,
without any authority or licence so to do, caused to be made by one
Jackson, a die-sinker (who, though he executed the order, gave notice
to the poUce, atid committed no offence against the law), the necessary
dies for making a counterfeit dollar of Peru. The dies, though suitable
and necessary for making such counterfeit coin, could not alone produce
it ; a press, copper blanks, galvanic battery, and a preparation of silver
being also necessary for that purpose. The prisoner had procured
galvanic batteries, and had been in negotiation for the purchase of a
press and copper blanks for the aforesaid purpose ; but he had not
actually procured either press, blanks, or preparation of silver. There
was no doubt that the prisoner intended to use the whole apparatus
when procured in making counterfeit Peruvian dollars, and the only
doubt was whether he intended to coin in Peru only, or in this country
also ; and it was contended that, if he only intended to make the coin
in Peru, no offence had been committed ; and even if he did intend to
coin in this country, that intention, though coupled with the act of causing
the dies to be made in pursuance of such intention, fell short of an attempt
to commit a felony. The jury found that the intention of the prisoner
was to cause to be made and procure the dies and other apparatus in
order therewith to coin counterfeit Peruvian half-dollars, and to make a
few only of the counterfeit coin in England by way of trying whether
the apparatus would answer before sending it out to Peru, to be there
used in making the counterfeit coin, and convicted the prisoner ; and
upon a case reserved, it was held that the conviction was right.
Jervis, C.J., said : ' This is not an indictment for an attempt to commit
statutable offence ; as was the case in R. v. Williams (e), where the charge
was an attempt to administer poison. Here there is no direct attempt
to coin, but the indictment is founded on a criminal intent coupled with
an act immediately connected with the offence. . . . Nobody can doubt
that the prisoner was in possession of machinery necessarily connected
with the offence, for the express purpose of committing it, and which
was obtained, and could be obtained, for no other purpose.' And Wight-
man, J., said : ' No doubt the act was done with intent to commit a felony,
and was sufficient to support such an indictment as the present. It is
an act immediately connected with the offence, and the prisoner could
have no other object than to commit the offence ' (/).

(e) J Den. 39 : 1 C. & K. 589. pose would have been a felony within the

(/ ) R. V. Roberts, Dears. 539, Jervis, statute ; and that even making a few

0. J., Parke, B., Wightman, Cress well, and specimens to put in a cabinet would also be

Wilkes, JJ. The Court seem to have been within the statute. And see R. v. Harvey,

clear that making a few specimens to asoer- L. R. 1 C. 0. R. 284 , ante, p. 367.
tain whether they would answer the pur-

( 370a )

CANADIAN NOTES.

OF AND EELATING TO COIN.

Sec. 1 — Definition and General Provisions.

Definition. — Code sees. 546, 547.

Completion of offence. — Code see. 548.

Knowledge and Intent. — Code sec. 549.

In the ease of persons who have passed counterfeit money or bills,
when it is necessary to establish a guilty knowledge on the part of the
prisoner, the prosecutor is allowed to give evidence of the prisoner
having passed other counterfeit money or bills ■ at about the same
time, or that he had many such in his possession, which circum-
stances tend strongly to shew that he was not acting innocently and
had not taken the money -casually, but that he was employed in
fraudulently putting it off. E. v. Brown (1861), 21 U.C.Q.B. 330,
per Robinson, C.J.

Possession, Meaning of. — Code sec. 5.

Sec. 2. — Punishment.
Code sec. 552.

Punishment for Second Offence. — Code sec. 568.

Sees. 851 and 963 as to the procedure where a previous convic-
tion is charged seems to imply that the second offence must have
been committed subsequently to the first conviction.

As to certificates of previous convictions. See Code see. 982.

A conviction for an offence charged as a second offence, which
second offence was committed prior to the date of the conviction of
the first offence was bad at common law. Ex parte Miller, 2 Pugs.
485 ; Ex parte McCoy, 7 Can. Cr. Cas. 487.

Evidence on Trial. — Code sec. 980.

Sec. 3. — Counterfeiting Coin.

Definition. — Code sec. 2(8).

Importing. — Code sec. 554.

Seizure and Forfeiture by Justices.— Code sec. 623.

Knowledge. — Code sec. 624.

Recovery of Penalty. — Code sec. 625.

.3706 Offences as to Coin. [book iv.

Seizure and Forfeiture iy Customs Officers. — Code sec. 626.
Counterfeiting. — Code see. 562.

Sec. 4. — Impairing and Defacing Current Coin.

Clipping Gold and Silver Coin. — Code sec. 558.

Unlawful Possession of Clippings. — Code sec. 560.

Defacing Current Coin. — Code sec. 559.

No proceeding or prosecution for the offence of uttering any coin
defaced by having stamped thereon any names or words, shall be taken
without the consent of the Attorney-General. Code sec. 598.

Sec. 5. — Of Importation of Counterfeit Gold and Silver Coin.

Gold or Silver Coin. — Code see. 563.

On a charge of having counterfeit coins in possession, proof that
the accused also had in his possession "trade dollars" which, al-
though genuine, were not worth their stamped value, is not admis-
sible as shewing intent to put off the counterfeit coin. R. v. Benham,
4 Can. Cr. Cas. 63.

Copper Coin. — Code sec. 554.

See. 6. — Exporting Counterfeit Current Coin.
Exporting. — Code see. 555.

Sec. 7. — Of Uttering, Tendering, etc.

Possessing with Intent to Utter. — Code sec. 561.

Where an indictment for having possession of counterfeit coin
with intent to utter same was, on demurrer, held bad for not alleg-
ing that the counterfeit coin "resembled some gold or silver coin then
actually current," the order made was that the indictment be quashed,
so that another indictment might be preferred, not that the defendants
be discharged. R. v. Tiemey, 29 U.C.Q.B. 181.

Uttering Counterfeit Coin. — ^Code sec. 564.

Uttering Light Coin. — Code sec. 565.

Uttering Defaced Coin. — Code sec. 566.

Uttering Uncurrent Coin. — Code see. 567.

Sec. 8. — Of Buying, Selling, etc.

Gold or Silver Coin. — Code sec. 553.

Advertising Counterfeit Money. — Code sec. 569.

Evidence of Fraudulent Scheme. — ^Code sec. 981.

This section covers not only the case of counterfeit money, i.e.,
false tokens purporting to be bank notes, etc., but false tokens pur-
porting to be counterfeit tokens.

The words "what purports to be" in see. 569 (formerly 51 Vict.
(Can.), ch. 40) import what appears on the face of the instrument;

CHAP. II.] Traffic in Counterfeit Coin. 370c

and therefore what was said to the prisoner, or what he thought or
believed, would not be of any moment. Per Rose, J., R. v. Attwood
(1891), 20 Ont. R. 574, 578.

When a person exhibits to another bank notes representing them as
counterfeit, when in fact they are not so, the offer to purchase such
notes cannot be an offence under the Act, as the prisoner was offering
to purchase that which the party had to seU, which were not counter-
feit tokens of value. Per MacMahon, J., R. v. Attwood (1891), 20
Ont. R. 574, 581.

In the last named case, the defendant was prosecuted for offering
to purchase bank notes which were shewn to him as counterfeit, but
were in fact genuine bank notes unsigned.

Doubt was also expressed in the Attwood Case as to whether the
section applies to counterfeit tokens not in esse, MacMahon, J., saying
that it may be that the clause of the statute wotild require to be
amended in order to reach a person offering to purchase such.

A paper which is a spurious imitation of a government treasury
note is a counterfeit, or what purports to be a counterfeit, token
of value although there is no original of its description. R. v. Corey
(1895), 1 Can. Cr. Cas. 161 (N.B.).

As to evidence of admissions made by the accused, see note to
sec. 685.

Although the taking possession of or using a 'counterfeit token of
value is an offence under sec. 569(d), if such counterfeit be also a
forged bank note the prosecution may be under Code sec. 550 for the
offence of having a forged bank note in possession knowing it to be
forged. R. v. Tutty (1905), 9 Can. Cr. Cas. 544, 38 N.S.R. 136.

Sec. 9. — Of the Making, etc.

Making or Possessing Implements for Counterfeiting. — Code sec.
556.

Search-warrant. — Code sees. 629 and 632(2).

Sec. 10. — Supplementary.

Bank Notes. — Code sec. 550.

Meaning of "Possession or Custody." — Code sec. 5.
Bank or Government Securities. — Code sec. 551.
Conveying Tools from Mint into Canada. — Code sec. 557.

( 371 )

CHAPTER THE THIRD.

OFFENCES AGAINST THE REVENUE LAWS

A. — Customs.

Conspiracy to defraud the Crown of customs duties is a misdemeanor
indictable at common law (a).

There has been much legislation passed from time to time in order
to prevent smuggling (b) and other acts tending to defeat the due collec-
tion of certain duties, which gave to revenue officers extraordinary powers
and protections, and punished persons endeavouring to resist or evade
the Customs law (c).

The earlier Acts have been superseded and their substance re-enacted
in the Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36). That
Act contains much relating to the forfeiture of vessels engaged in illegal
traffic, and of uncustomed goods, which does not come within the scope of
this treatise. But it is necessary to notice the enactments relating to
the right to seize vessels suspected of being employed for smuggling
and to search for and seize uncustomed goods, and also the indictable
ofiences created by the statute. The Act applies to the United
Kingdom, to the Isle of Man (sect. 277), and to the Channel Islands
(sect. 289).

By sect. 151, ' The Customs Acts shall extend to and be of full force
and effect in the several British possessions abroad, except where other-
wise expressly provided for by the said Acts, or limited by express
reference to the United Kingdom or the Channel Islands, and except
also as to any such possessions as shall by local Act or ordinance have
provided, or may hereafter, with the sanction and approbation of His
Majesty, make entire provision for the management and regulation of
the customs of any such possession, or make in like manner express pro-
visions in lieu or variation of any of the clauses of the said Act (sic),
for the purposes of such possession ' (d).

False Declarations. — By sect. 168, ' If any person shall in any matter
relating to the Customs or under the control or management of the

(a) R. V. Thompson, 16 Q.B. 832. indiotments for misdemeanors, in assault-

(6) i.e., bringing on shore or carrying ing and obstructing officers of excise and

from the shore goods, wares, or merchandise customs, acting in the due execution of

on which duty has not been paid, or the their offices. 4 Wentw. 385 et seq. 2 Chit,

importation or exportation whereof is pro- Cr. L. 127 et seq. And see E. v. Brady,

hibited (vide post, p. 374). See 1 Hawk. 1 B. & P. 187, where it was admitted that

0. 48, s. 1 ; 4 Bl. Com. 155 ; Bac. Abr. the oiience charged was indictable at com-

' Smuggling.' mon law.

or alternative to, the common law remedies British possession contrary to the Acts, are

by indictment. See the precedents of declared void (s. 161).

2b2

372 Of Offences against the Revenue Laws. [book iv.

Commissioners of Customs, make and subscribe, or cause to be made and
subscribed, any false declaration, or make or sign any declaration certifi-
cate or other instrument required to be verified by signature only, the same
being false in any particular, or if any person stall make or sign any
declaration made for the consideration of the Commissioners of Customs
on a.ny application presented to them, the same being untrue in any
particular, or if any person required by this or any other Act relating
to the Customs to answer questions put to him by the officers of Customs
shall not truly answer such questions, or if any person shall counterfeit
falsify or wilfully use when counterfeited or falsified, any document
required by this or any Act relating to the Customs or by or under
the directions of the Commissioners of Customs, or any instrument used
in the transaction of any business or matter relating to the Customs,
or shall alter any document or instrument after the same has been
ofiicially issued, or counterfeit the seal signature initials or other mark
of or used by any officer of the Customs for the verification of any such
document or instrument, or for the security of goods, or any other purpose
in the conduct of business relating to the Customs or under the control
or management of the Commissioners of Customs or their officers, every
person so offending shall for every such offence forfeit the penalty of one
hundred pounds ' (e).

Smuggling.— By sect. 179, ' If any ship or boat shall be found or
discovered to have been within any port bay harbour river or creek
of the United Kingdom or the Channel Islands, or within three leagues of
the coast thereof if belonging wholly or in part to British subjects, or
having half the persons on board subjects of His Majesty, or within one
league if not British, have false bulk heads false bows double sides or
bottom, or any secret or disguised place adapted for conceaUng goods, or
any hole tube pipe or device adapted for running goods, or having on
board or in any manner attached thereto, or having had on board or in any
manner attached thereto, or conveying or having conveyed in any manner
any spirits tobacco snuff or packages of any size and character in
which they are prohibited to be imported into the United Kingdom or
the Channel Islands, or any spirits or tobacco or snuff imported contrary
to the Customs Acts, or any tobacco stalks ; tobacco stalk fiour, or snuff
work, or which {sic) shall be found or discovered to have been within three
leagues of any part of the coast of the United Kingdom from which any
part of the lading of such ship or boat shall be or have been thrown
overboard, or on board which any goods shall be or have been staved or
destroyed to prevent seizure,' the ship, boat, spirits, &c., shall be for-
feited (/), and ' every person who shall be found or discovered to have
been on board any ship or boat liable to forfeiture as aforesaid, within
three leagues of the coast if a British Subject, and within one league if a
foreigner {g), or on board any vessel in His Majesty's service, or on board

43 Vict. c. 21, s. 11, post, p. 383. the vessel in a sum not exceeding £500.

(/ ) By 53 & 54 Vict. c. 56, s. 1, ships or The ship may be detained till the fines are

boats of 250 tons burden and upwards are paid or secured.

. excepted from forfeiture, and by ss. 2, 3, (g) See Territorial Waters Jurisdiction

provisions are made for dealing with larger Act, 1878, ante, p. 41.
vessels by fining a responsible officer of the

CHAP. III.] Of Offences against the Customs. 373

any foreign post office packet employed in carrying mails between any
foreign country and the United Kingdom having on board any spirits or
tobacco in such packages as aforesaid or any tobacco stalks, tobacco
stalk flour or snufi work, shall forfeit a sum not exceeding £100 ; and
every such person may be detained and taken before any justice, to be
dealt with as hereinafter directed : Provided, that no person shall be
detained whilst actually on board any vessel in the service of a foreign
state or country ' {h). ' And provided also that no person shall be liable
to conviction under this section unless there shall be reasonable cause
to believe that such person was concerned in or privy to the illegal act
or thing proved to have been committed ' {i).

Sect. 180 provides for the forfeiture of any ships or boats belonging
wholly or in part to His Majesty's subjects or having half the persons
on board His Majesty's subjects if they do not bring to on signal by a
vessel or boat in His Majesty's service or in the service of the revenue
and on chase throw overboard stave or destroy any part of the lading
to prevent seizure. All persons escaping from such ship or boat during
chase are to be deemed subjects of His Majesty unless the contrary is
proved.

Search and Seizure of Smuggling Vessels, &c. — By sect. 181, ' If any
ship or boat liable to seizure or examination under the Customs Acts
shall not bring to when required so to do, the master of such ship or boat
shall forfeit the sum of £20 ; and on being chased by any vessel or boat in
His Majesty's navy having the proper pendant and ensign of His Majesty's
ships hoisted, or by any vessel or boat duly employed for the prevention
of smuggling, having a proper pendant and ensign hoisted, it shall be
lawful for the captain, master (see sect. 284), or other person having the
charge or command of such vessel or boat in His Majesty's navy, or
employed as aforesaid (first causing a gun to be fired as a signal), to fire
at or into such ship or boat, and such captain, master, or other person
acting in his aid or by his direction shall be and is hereby indemnified and
discharged from any indictment penalty action or other proceeding for
so doing.'

By sect. 182, ' Any officer of Customs or other person duly employed
for the prevention of smuggling may go on board any ship or boat which
shall be within the limits of any port of the United Kingdom or the
Channel Islands, and rummage and search the cabin and all other parts
of such ship or boat for prohibited or uncustomed goods, and remain
on board such ship or boat so long as she shall continue within the limits
of such port.'

By sect. 12 of the Customs, &c.. Act, 1881 (44 & 45 Vict. c. 12) (/), 'Any
officer of Customs or other persons duly employed in the prevention of
smuggling may search any person on board any ship or boat within the
limits of any port in the United Kingdom or the Channel Islands, or
any person who shall have landed from any ship or boat, provided such
officer or other person duly employed as aforesaid shall have good reason

(Ji) See a?he Mail Ships Acts, 1891 (34 & o. 7, s. 1.
55 Vict. 0. 31), and 1902 (2 Edw. VII. c. 36). (?) Substituted by 44 & 45 Vict. .. 12,

(»■) Proviso added by 50 Vict, sess. 2, o. 13, for s, 184 of the Act of 1870.

374 Of Offences against the Revenue Laws. [book iv.

to suppose that such person is carrying or has any uncustomed or
prohibited goods about his person.

A person shall be guilty of an offence—

1. If he staves breaks or destroys any goods to prevent the seizure

thereof by an officer of Customs or other person authorised to
seize the same.

2. If he rescues or staves breaks or destroys to prevent the securing

thereof any goods seized by an officer of Customs or any other
person authorised to seize the same.

3. If he rescues any person apprehended for any offence punishable

by fine or imprisonment under the Customs Acts.

4. If he prevents the apprehension of any such person.

5. If he assaults or obstructs any officer of Customs or any officer

of the army, navy, marines, coastguard, or other person duly
employed for the prevention of smuggling, going or returning
from on board any ship within the limits of any port in the
United Kingdom or the Channel Islands, or in searching such a
ship or boat, or in searching a person who has landed from any
such ship or boat, or in seizing any goods liable to forfeiture
under the Customs Acts, or otherwise acting in the execution
of his duty.

6. If he attempts or endeavours to commit, or aids, abets, or assists

in the commission of any of the offences mentioned in this section.
And a person so offending, shall, for each offence, forfeit a penalty not
exceeding £100 (k), and he may either be detained or proceeded against
by information and summons.

By sect. 185 of the Act of 1876, ' Before any person shall be searched
he may require to be taken with all reasonable despatch before a justice,
or before the collector or other superior officer of Customs, who shall,
if he see no reasonable cause for search, discharge such person, but if
otherwise, direct that he be searched, and if a female she shall not be
searched by any other than a female ; but if any officer shall without
reasonable ground cause any person to be searched, such officer shall
forfeit and pay a sum not exceeding ten pounds. If any passenger or
other person on board any such ship or boat, or who may have landed
from any such ship or boat, shaU, upon being questioned by any officer
of Customs or other person duly employed for the prevention of smugghng
whether he has any foreign goods upon his person or in his possession or
in his baggage, deny the same, and any such goods shall after such denial
be discovered to be or to have been upon his person or in his possession
or in his baggage, such goods shall be forfeited, and such person shall
forfeit one hundred pounds, or treble the value of such goods, at the
election of the Commissioners of Customs.'

Prohibited and Restricted Goods. — Sec. 186. ' Every person who shall

import or bring, or be concerned in importing or bringing into the

United Kingdom any prohibited goods or any goods the importation

of which is restricted (2), contrary to such prohibition or restriction,

(k) Eecoverable under 42 & 43 Viet. enumerated in sa. 42-45 of the Act of 1876.

0. 21, s. 11, /post, p. 383. The following additions have been made to

(Z) Prohibited and restricted goods are the text ; ' Imitation coin,' 52 & 53 Vict.

CHAP. III.] Of Offences against the Customs. 375

whether the same be unshipped or not ; or shall unship or assist or be
otherwise concerned in the unshipping of any goods which are prohibited,
or of any goods which are restricted and imported contrary to such
restriction, or of any goods liable to duty, the duties for which have not
been paid or secured ; or shall deliver, remove or withdraw from any
ship, quay, wharf, or other place previous to the examination thereof
by the proper officer of Customs, unless under the care or authority of
such officer, any goods imported into the United Kingdom or any goods
entered to be warehoused after the landing thereof, so that no sufficient
account is taken thereof by the proper officer, or so that the same are not
duly warehoused ; or shall carry into the warehouse any goods entered
to be warehoused or to be rewarehoused, except with the authority or under
the care of the proper officer of the Customs, and in such manner, by such
persons, within such time, and by such roads or ways as such officer shall
direct ; or shall assist or be otherwise concerned in the illegal removal
or withdrawal of any goods from any warehouse (sect. 284) or place of
security in which they shall have been deposited ; or shall knowingly
harbour, keep, or conceal, or knowingly permit or suffer, or cause or
procure to be harboured, kept, or concealed, any prohibited, restricted,
or uncustomed goods, or any goods which shall have been illegally re-
moved without payment of duty from any warehouse or place of security
in which they may have been deposited ; or shall knowingly acquire
possession of any such goods ; or shall be in any way knowingly con-
cerned in carrying, removing, depositing, concealing, or in any manner
dealing with any such goods with intent to defraud His Majesty of any
duties due thereon, or to evade any prohibition or restriction of or ap-
plication to such goods ; or shall be in any way knowingly concerned in
any fraudulent evasion or attempt at evasion of any duties of Customs,
or of the laws and restrictions of the Customs relating to the importation,
unshipping, landing, and delivery of goods, or otherwise contrary to
the Customs Acts ; shall for each such offence forfeit either treble the
value of the goods, including the duty payable thereon, or one hundred
pounds, at the election of the Commissioners of Customs ; and the offender
may either be detained or proceeded against by summons ' (m).

Assembling for Smuggling, and Use of Offensive Weapons. — By the
Customs Act, 1879 (42 & 43 Vict. c. 21), s. 10 (n), ' All persons to the
number of three or more who shall assemble for the purpose of unshipping,
landing, running, carrying, concealing, or having so assembled shall unship,
land, run, carry, convey, or conceal any spirits, tobacco, or any prohibited,
restricted, or uncustomed goods, shall each forfeit a penalty not exceeding
£500 nor less than £100.'

By sect. 189 of the Act of 1876, ' every person who shall by any means

c. 42, s. 2 ; ' certain foreign coin,' 49 & 50 Vict. c. 42), extended to the separation of

Vict. u. 41, s. 2 ; 42 & 43 Vict. c. 21, s. 5. dutiable goods from other matter, where

And see 50 & 51 Vict. c. 78 ; 59 & 60 Vict. the dutiable goods have been taken to a

c. 28, ss. 4, 5, 6 ; 60 & 61 Viet. c. 63, s. 1 ; warehouse as unfit for consumption, by

61 & 62 Vict. c. 46, ». 1 ; 3 Edw. VII. c. 21, reason of their being mixed with any other

s. 1 ; 6 Edw. VII. c. 20, s. 6 ; 7 Edw. VII. matter.

0. 21, s. 5 : 8 Edw. VII. o. 42, s. 5. (n) Substituted by 42 & 43 Vict. o. 21,

(m) The penalties of this section are by s. 14 and sched. for s. 188 of the Act of 1876.
?. 6 of the Revenije Act, 1889 (52 & 53

376 Of Offences against the Revenue Laws. [book iv.

procure or hire or shall depute or authorise any other person to procure
or hire, any person or persons to assemble for the purpose of being con-
cerned in the landing or unshipping or carrying conveying or concealing
any goods which are prohibited to be imported, or the duties for which
have not been paid or secured, shall be imprisoned for any term not
exceeding twelve months ; and if any person engaged in the commission
of any of the above offences be armed with firearms or other offensive
weapons, or whether so armed or not be disguised in any way, or being
so armed or disguised, shall be found with any goods liable to forfeiture
under the Customs Acts, within five miles of the seacoast or of any tidal
river, shall be imprisoned with or without hard labour for any term not
exceeding three years ' (o).

Assembling.— In a case under 19 Geo. TI. c. 34 (rep.), it was held
that the assembling must be deliberate, and for the purpose of committing
the offence described in the statute. So that where a set of drunken men
came from an alehouse, and hastily set themselves to carry away some
Geneva which had been seized by the excise officers, it was thought very
questionable whether the object which the Legislature had in view could
be extended to such a case; and the Court said, that the words of the
statute manifestly alluded to the circumstance of great multitudes
of persons coming down upon the beach of the sea for the purpose of
escorting uncustomed goods to the places designed for their reception (p).

Offensive Weapons. — The term ' weapon ' would seem to include
any instrument of metal or wood, or any club, stone, or other thing
which is had for the purpose of effecting an injury on the person, according
to the doctrine of the Roman law, Teli appellatione et ferrum, el fu-stis,
et lapis, et denique omne quod nocendi causa Jiabstur, significatur (q).

It was held that to bring offenders within the penalties of 19 Geo. II.
c. 34 (rep.), for offences committed by persons, to the number of three or
more, armed with firearms, or other offensive weapons, it was necessary
that the offenders should be armed with offensive (r) weapons. It seems
to have been held that a person catching up a hatchet accidentally, during
the hurry and heat of an affray, was not armed with an offensive weapon

(o) The intention of these two sections imposed by the clause. Alderson, B., said

probably is that three or more persons (p. 44) : ' We must look at the statute to see

assembling are to be liable to a penalty, whether it was intended that every person

and persons procuring them to assemble offending should be punished, or merely

are to be liable to twelve months' imprison- that every offence should be punished,

ment ; but if persons assemble armed, or The question is whether an oflfenoe that is

procure others to assemble armed, they are committed by several persons is to be

to be liable to three years' imprisonment. visited by a penalty.'

The sections are difficult to construe. See (p) R. v. Hutchinson, 1 Leach, 343.

Stephen's Digest (6th ed.), art. 81. The The Court offered the Attorney-General a

term of three years does not seem to have special verdict upon this case : but he

been altered by 54 & 55 Vict. c. 69, s. 1, declined to take it, and the prisoners were

ante, p. 212. In R. v. Dean, 12 M. & W. acquitted. This construction of the statute

39, two persons were separately convicted as to the assembling being deliberate, and

of unshipping goods against 3 & 4 Will. IV. for the purpose of committing the offence,

u. 53, s. 44, by which ' every person con- is stated to have been adopted by Willes,

cerned in the unshipping of goods, the J., and Hotham, B., in R. v. Spice, and by

duties of which have not been paid, was Heath, J., in R. u. Gray (both in 1785).

liable to forfeit either the treble value 1 Leach, 343, note (a),

thereof, or to a penalty of £100, and it was {q) Heinecc. Antiq. Tit. 1, s. 9.

held that each was liable to the penalties (r) R, v. Hutchinson, 1 Leach, 342,

CHAP. III.] Of Offences against the Customs. 377

within the meaning of that Act (s) ; and that large sticks about three
feet long, with large knobs at the end, with several prongs, the natural
growth of the stick, arising out of them, were not offensive weapons ; and
that, from the preamble of that Act, the weapons must be such as the
law calls dangerous (t). But in a subsequent case, the Court said, that
although it was difficult to say what should or should not be called an
offensive weapon, it would be going a great deal too far to say that nothing
but guns, pistols, daggers, and instruments of war, should be so considered ;
and that bludgeons properly so called, clubs, and anything that was not in
common use for any other purpose but a weapon, were clearly offensive
weapons within the meaning of the Legislature (u). Upon 9 Geo. II. c. 35,
s. 10 (rep.), where the same words, ' armed with firearms, or other offensive
arms or weapons,' occurred, it was held that a person armed only with a
common whip was not within the meaning of the Act ; though he aided
and assisted other persons who were armed with firearms and weapons
which were clearly offensive (v). But the correct rule seems to be that
laid down by Lord Mansfield in a case imder 19 Geo. II. c. 34 (rep.), viz.,
that where a person was assembled together with others who were armed,
and was active, it was not necessary that such individual should be
armed (w).

Where a number of persons were assembled for the purpose of landing
smuggled goods, and they were, as is usual on such occasions, divided into
two different parties, one called the company, who had bats in theil
hands for the purpose of carrying tubs of spirits (which bats were hop-
poles about seven feet in length), and the other, called the protecting
party, who were armed with muskets ; and the prisoner was one of the
company, and carried a bat, but he did not strike any one with it, but
some of the men with bats struck some of the preventive men ; as the
bats might be used for offensive purposes, it was left to the jury to say
whether the bats were offensive weapons or not {x).

Upon 7 Geo. II. c. 21 (rep.), by which any person who should, with an
offensive weapon or instrument, assault with intent to rob, was made
guilty of felony, it was decided that the words, ' offensive weapon or
instrument,' would apply to a stick, though not of extraordinary size, and
though it might in general have been used as a walking-stick. An indict-
ment was for assaulting with an offensive weapon, viz., a stick, with
intent to rob ; and it appeared that the stick was like a common walking-
stick, about a yard long, and not very thick, but that the prisoner, when
he came up to the prosecutor, struck him violently on the head with it, so
as to cut his head and make it bleed ; and two of the prisoner's comrades
afterwards came up and beat the prosecutor on the head with similar
sticks. Holroyd, J., told the jury, that as the prisoner had used the
stick as a weapon of offence, he thought it ought to be considered as an
offensive weapon ; and the jury having convicted the prisoner, the judges

(«) E. V. Rose, 1 Leach, 342, note (a). {v) R. v. Fletcher, 1 Leach, 23.

(«) R. V. Ince, 1 Leach, 342, note (o). (w) R. v. Franklin, 1 Leach, 255 ; Cald.

(u) R. V. Cosan, 1 Leach, 342, 343, note 244. See R. v. Smith, R. & R. 368, post,

(o). It was contended, upon the authority Vol. li. p. 1341.

of R. V. Ince, that very large club sticks, {x) R. v. Noakes, 5 C. & P. 326, Little-
such as people ride with, to defend them- dale, J., Alderson, J., Holland, B,
selves, are not offensive weapons,

378 Of Offences against the Revenue Laws. [book iv.

agreed with Holroyd, J., and held the conviction right (y). And in a case
on the Night Poaching Act, 1828 (9 Geo. IV. c. 69), s. 9, it was held to be a
question for the jury whether the prisoner had taken out a stick, large
enough to be called a bludgeon, which he, being lame, was in the habit of
using as a crutch, with intent to use it as an offensive weapon, or merely
for the purpose to which he usually applied it (z). From a case upon
the same repealed statute (7 Geo. II. c. 21), where the indictment was for
assaulting with a certain offensive weapon called a wooden staff, and the
evidence proved a violent blow with a great stone, as it was held that the
conviction of the prisoner was proper, it appears to follow that both a
wooden staff and a great stone were considered as offensive weapons
within the meaning of that statute (a).

Signalling in Aid of Smugglers. — By sect. 190 of the Act of 1876, ' No
person shall, after sunset or before sunrise, between the twenty-first
day of September and the first day of April, or after the hour of eight
in the evening and before the hour of six in the morning at any other
time of the year, make, aid, or assist in making any signal in or on board
or from any ship or boat, or on or from any part of the coast or shore of the
United Kingdom, or within six miles of any part of such coast or shore,
for the purpose of giving notice to any person on board any smuggling
ship or boat, whether any person so on board of such ship or boat be or
not within distance to notice any such signal ; and if any person, contrary
to the Customs Acts, shall make or cause to be made, or aid or assist in
making, any such signal, he shall be guilty of a misdemeanor, and may be
stopped arrested detained and conveyed before any justice, who, if he
see cause, shall commit the offender to the next county gaol, there to
remain rmtil delivered by due course of law ; and it shall not be necessary
to prove on any indictment or information in such case that any ship or
boat was actually on the coast ; and the offender, being duly convicted,
shall, by order of the Court before whom he shall be convicted, either
forfeit the penalty of one hundred pounds, or, at the discretion of such
Court, be committed to a gaol or house of correction, there to be kept to
hard labour for any term not exceeding one year ' (6).

iy) R. V. Jolinson [1822], B. & R. 492. indictment did not state the offence to have

(z) R. V. Palmer, 1 M. & Rob. 70, Taun- been committed between Sept. 21 and

ton, J. Vide post, Vol. ii. p. 1342. April 1, and that the allegation that the

(a) R. V. Sherwin [1785], 1 East, P. 0. offence was committed on March 9 was not

421. The ground upon which the judges sufiScient, because the prosecutor was not

held in this case, that the evidence was bound to the day laid, but might prove the

sufficient to maintain the charge in the in- offence to have taken place on any other

dictment, and the weapon proved, produce day; that the time was of the essence of

the same sort of mischief, viz., by blows the offence, and therefore it ought to have

and bruises ; and that the description formed a distinct and substantive aver-

would have been sufficient in an indict- ment in the words of the Act ; but it was

ment for murder. held that the day having been proved as

(6) In R. V. Brown, M. & M. 163, where laid, the objection could only properly be

an indictment upon 6 Geo. IV. o. 108, s. 52 made in arrest of judgment, and even then

(rep.), which was similar to s. 190 of the it was no vahd objection ; for judicial

Act of 1876, stated that the defendants notice must be taken that the day averred

between sunset on March 8 and sunrise on in the indictment is, in fact, within the

March 9, that is to say, on the morning of period mentioned in the statute, and there-

the said March 9, about three o'clock, did fore the indictment was good. Littledale,

make certain lights, &c. It was proved J., after consulting Gaselee, J., and see R,

that the lights were made on the morning v. Mt^rtin, ante, p. 357.
of March 9, ar^d Jl; w«is objected tha,t ^1;©

CHAP. III.] Of Offences against the Customs. 379

By sect. 191, ' If any person be charged with having made or caused
to be made, or for aiding or assisting in making, any such signal as afore-
said, the burden of proof that such signal so charged as having been
made with intent and for the purpose of giving such notice as aforesaid
was not made with such intent and for such purpose shall be upon the
defendant against whom such charge is made.'

By sect. 192, ' Any person whatsoever may prevent any signal being
made as aforesaid, and may go upon any lands for that purpose, without
being liable to any indictment suit or action for the same.'

Shooting at Preventive Vessels. — By sect. 193, ' If any person shall
maliciously shoot at any vessel or boat belonging to His Majesty's navy,
or in the service of the revenue, or shall maliciously shoot at, maim, or
wound any officer of the army navy marines or coastguard, being duly
employed in the prevention of smuggling and on full pay, or any officer
of customs or excise, or any person acting in his aid or assistance, or
duly employed for the prevention of smuggling, in the execution of his
office or duty, every person so offending, and every person aiding abetting
or assisting therein, shall, upon conviction, be adjudged guilty of felony,
and shall be liable, at the discretion of the Court, to penal servitude for
any term not less than five years (c), or to be imprisoned for any term
not exceeding three years ' (d).

Upon the similar section in 52 Geo. III. c. 143, s. 11 (rep.) (e), it was
held that where a custom-house vessel had chased a smuggler and fired
into her without hoisting the pendant and ensign then required (by 56
Geo. III. c. 104, s. 8), the returning such fire- was not malicious. The
indictment was for shooting at a vessel in the service of the customs on
the high seas within one hundred leagues of the coast of Great Britain ;
and also for maliciously shooting at an officer of the customs, &c. The
revenue vessel had chased a smuggler within the limits ; the smuggler did
not bring to upon being chased and a signal-gun fired ; whereupon the
revenue vessel fired at the smuggler, and the smuggler returned the fire, and
they had a regular engagement, in which one of the custom-house officers
was severely wounded. In order to prove the right to fire at the smuggler,
reference was made to 56 Geo. III. c. 104, s. 8, which, in the case of ships
employed by the Treasury, Admiralty, Customs, or Excise to prevent
smuggUng, gave the power of firing at the smuggler, if the ship had a
pendant and ensign hoisted of such description as His Majesty by any
order in council, or by royal proclamation under the Great Seal, should
direct. There had been no proclamation, nor was any order in council
proved ; though, after the trial, an order in council was discovered, which
required certain particulars in the pendant and ensign which this ship's
pendant and ensign had not. Upon a case reserved, eleven judges (Best,
J., being absent) were clear that, as the custom-house vessel had not
comphed with what was required to make her shooting legal, the smuggler's
firing was not in law maUcious (/).

(c) Apparently this means ' for life, or not imprisonment is altered by 54 & 55 Vict,
less than.' The minimum term is now o. 69, s. 1, ante, p. 212.

three years. 54 & 55 Vict. c. 69, s. 1, ante, (e) The Hovering Act.

p. 211. (/) R. V. Reynolds, Mich. T. 1821, R, &

(d) Quaere whether the maximum term of R. 465, and MS, Bayley, J,

380 Of Offences against the Revenue Laws. [book iv.

By sect. 195, ' Every person who shall cut away, cast adrift, remove,
alter, deface, sink, or destroy, or in any other way injure or conceal any
vessel boat buoy anchor chain rope or mast in the charge of or used
by any person for the prevention of smuggling, or in or for the use of the
service of the customs, shall for every such offence forfeit the sum
of £10.'

By sect. 196, officers of the army, navy, marines, or coastguard
on full pay and duly employed for the prevention of smuggUng and
officers of customs and any person acting in their aid, when on duty, may
patrol and pass freely along and over the coasts, and railways, and creeks
and inlets of the sea, except in gardens and pleasure groimds.

Detention of Crew of Smugglers. — By sect. 198, ' Where any person,
being part of the crew of any ship in His Majesty's employment or service,
shall have been detained under the Customs Acts, such person, upon
notice thereof to the commanding officer of the ship, shall be placed in
security by such commanding officer on board such ship or vessel, until
required to be brought before a justice to be dealt with according to law,
for which purpose such commanding officer shall deliver him to the
detaining officer.'

By sect. 199, ' If any person liable to be detained under the Customs
Acts shall not be detained at the time of committing the offence, or
being detained shall escape, he may afterwards be detained at any
place in the United Kingdom within three years from the time such
offence was committed, and if detained may be taken before any justice
to be dealt with as if he- had been detained at the time of committing
such offence, or if not so detained may be proceeded against by informa-
tion and summons.'

Taking up Floating Spirits. — By sect. 200, ' If any person not being an
officer of the navy, customs, or excise shall intermeddle with or take up
any spirits being in casks of less content than nine (g) gallons foimd
floating upon or sunk in the sea, such spirits shall be forfeited, together
with any vessel or boat in which they may be found ; but if any person
shall give information to any such officer so that seizure of such spirits
may be made, he shall be entitled to such reward as the Commissioners
of Customs may direct.'

Offer of Prohibited Goods. — By sect. 201, ' If any person shall offer for
sale any goods under pretence that the same are prohibited, or have been
unshipped and run ashore without payment of duties, all such goods
(although not liable to any duties or prohibited) shall be forfeited, and
every person so offering the same for sale shall forfeit treble the value of
such goods.'

Seizure of Vessels or Vehicles in Use for Smuggling. — By sect. 202,
' All ships boats carriages, or other conveyances, together with all horses
and other animals and things made use of in the importation landing
removal or conveyance of any uncustomed prohibited restricted or
other goods Hable to forfeiture under the Customs Acts shall be forfeited,
and all ships boats goods carriages or other conveyances, together with

ig) Substituted by s. 4 of the Finance the quantity originally specified in the
Act, 1896 (59 & 60 Vict. c. 28), for ' twenty,' section.

CHAP. III.] Of Offences against the Customs. 381

all horses and other animals and things liable to forfeiture, and all persons
liable to be detained for any offence under the Customs Acts, or any other
Act whereby officers of customs are authorised to seize or detain persons,
goods, or other things, shall or may be seized or detained in any place
either upon land or water by any of the following persons, being duly
employed for the prevention of smuggling, that is to say, any officer of His
Majesty's army navy marines coastguard customs, or excise, or by any
person having authority from the Commissioners of Customs or Inland
Revenue to seize, or by any constable or police officer of any county city
or borough in the United Kingdom so employed with the sanction of the
magistrates having jurisdiction therein, or under or by virtue of any Act
in relation thereto, and all ships boats goods carriages or other convey-
ances, together with all horses and other animals and things so seized,
shall forthwith be delivered into the care of the collector or other proper
officer of customs at the nearest custom-house ; and the forfeiture of any
ship boat carriage animal or other things shall be deemed to include
the tackle, apparel, and furniture thereof, and the forfeiture of any goods
shall be deemed to include the package in which the same are found and
all the contents thereof.'

Stopping and Searching Vehicles. — Sect. 203. ' Any officers of customs
excise coastguard constabulary police or other person duly employed
for the prevention of smuggUng, may upon reasonable suspicion or
probable cause stop and examine any cart waggon or other conveyance,
to ascertain whether any smuggled goods are contained therein ; and if
none shall be found the officer or other person shaU. not on account of
such stoppage and examination be liable to any prosecution or action
at law on account thereof ; and any person driving or conducting such
cart, waggon, or other conveyance refusing to stop or allow such ex-
amination when required in the King's name, shall forfeit not less than
twenty nor more than one hundred pounds.'

Writs of Assistance. — Sect. 204. ' AU writs of assistance issued from
the Court of Exchequer or other proper Court Qi) shall continue in force
during the reign for which they were granted and for six months after-
wards, and any officer of customs, or person acting under the direction
of the Commissioners of Customs, having such writ of assistance or any
warrant issued by a justice of the peace may, in the daytime, enter
into and search {i) any house shop cellar warehouse room or other
place, and in case of resistance, break open doors chests trunks and
other packages, and seize and bring away any uncustomed or prohibited
goods, and put and secure the same in the King's warehouse ; and may
take with him any constable or police officer, who may act as well without
as within the limits of the district or place for which he shall have been
sworn or appointed.'

Search of Houses, &c. — Sect. 205. ' If any officer of customs shall have

(A) Now from the Revenue side of the in consequence of R. v. Watts, 1 B. & Ad.

High Court of Justice (K.B.D.). See 166, where it was doubted whether that

Exchequer Rules, 1860, x. 126. As to the power existed under 6 Geo. IV. i;. 108, s. 40

writ of assistance in other branches of the (rep.), and where it was also doubted

High Court, see Wyman v. Knight, 39 Ch. whether the ordinary writ of assistance

D. 165. was not too general.

(i) The power to search was introduced

382 Of Offences against the Revenue Laws. [book iv.

reasonable cause to suspect that any uncustomed or prohibited goods
are harboured kept or concealed in any house or other place either
in the United Kingdom or the Channel Islands, and it shall be made to
appear by information on oath before any justice of the peace in the
United Kingdom or the Channel Islands, it shall be lawful for such
justice, by special warrant under his hand, to authorise such officer to
enter and search such house or other place, and to seize and carry away
any such uncustomed or prohibited goods as may be found therein ; and
it shall be lawful for such officer, and he is hereby authorised, in case of
resistance, to break open- any door, and to force and remove any other
impediment or obstruction to such entry search or seizure as aforesaid :
and such officer may, if he see fit, avail himself of the service of any
constable or police officer to aid and assist in the execution of such
warrant, and any constable or other police officer is hereby required
when so called upon, to aid and assist accordingly/

Stoppage and Seizure of Goods. — By sect. 206, ' If any such goods
liable to duties of customs, or prohibited to be imported, or in any way
restricted, shall be stopped or taken by any police officer on suspicion
that the same had been feloniously stolen, he may carry the same to the
police office to which the offender if detained is taken, there to remain
until and in order to be produced at the trial of such offender, and
in such case the officer is required to give notice in writing to the Com-
missioners of Customs of such stoppage or detention, with the particulars
of the goods, but immediately after such stoppage, if the offender be
not detained, or if detained immediately after the trial of such offender,
such officer shall convey to and deposit the goods in the nearest customs
warehouse, to be proceeded against according to law ; and if any police
officer so detaining any such goods shall neglect to convey the same to
such warehouse, or to give the notice hereinbefore prescribed, he shall
forfeit a sum not exceeding twenty pounds.'

By sect. 207, ' Whenever any seizure shall be made, unless in the
possession or in the presence of the offender, master, or owner as forfeited
under the Customs Acts or under any Act by which customs officers
are empowered to make seizures, the seizing officer shall give notice in
writing of such seizure and of the grounds thereof to the master or
owner of the things seized, if known, either by delivering the same to
him personally or by letter addressed to him and transmitted by post to
or delivered at his last known place of abode or business, if known ; and
all seizures made under the Customs Acts or under any Act by which
customs officers are empowered to make seizures shall be deemed and
taken to be condemned, and may be sold or otherwise disposed of in
such manner as the Commissioners of Customs may direct, unless the
person from whom such seizure shall have been made, or the master or
owner thereof, or some person authorised by him, shall, within one
calendar month from the day of seizure, give notice in writing, if in
London, to the person seizing the same, or to the secretary or solicitor
for the customs, and if elsewhere, to the person seizing the same, or to
the collector or other chief officer of the customs at the nearest port, that
he claims the things so seized or intends to claim them, whereupon
proceedings shall be taken for the forfeiture and condemnation thereof

CHAP. III.] Of Offences against the Customs. 383

either by information filed in . . . the High Court of Justice in Eng-
land {j) on the Kevenue side, or exhibited before any justice of the peace ;
but if any things so seized shall be of a perishable nature, or consist of
horses or other animals, the same may by direction of the Commissioners
of Customs be sold, and the proceeds thereof retained to abide the result
of any claim that may legally be made in respect thereof/

By sect. 208, ' All seizures whatsoever which shall have been made
and condemned under the Customs Acts or any other Act by which
seizures are authorised to be made by officers of customs shall be disposed
of in such manner as the Commissioners of Customs may direct.'

By sect. 209, ' When any seizure shall have been made or any fine
or penalty incurred or inflicted, or any person committed to prison for
any offence under the Customs Acts, the Commissioners of the Treasury
or Customs may direct the restoration of such seizure, whether con-
demnation shall have taken place or not, or waive proceedings, or mitigate
or remit such fine or penalty, or release from confinement either before
or after conviction such person on any terms and conditions as they
shall see fit.'

Bribes. — Sect. 217, after imposing penalties on officials who make
collusive seizures or take bribes, enacts that, ' Every person who shall
give or offer, or promise to give or procure to be given, any bribe recom-
pense or reward to, or shall make any collusive agreement with any such
officer or person as aforesaid, to induce him in any way to neglect his
duty, or to do, conceal or connive at any act whereby any of the pro-
visions of any Act of Parliament relating to the Customs may be evaded,
shall forfeit the sum of £200' (A;),

By sect. 11 of the Customs, &c.. Act, 1879 (42 & 43 Vict. c. 21) {I), ' All
duties, penalties, and forfeitures incurred under or imposed'by the Customs
Acts, and the liability to forfeiture of any goods seized under the authority
thereof, may be sued for prosecuted determined and recovered by
action information or other appropriate proceeding in the High Court
of Justice in England ' . . . ' in the name of the Attorney-General for
England ' . . . ' or of some officer of customs or excise, or by information

{j) King's Bench Division. the count did not shew that H. was a

{k) In R. V. Everett, 8 B. & C. 114 ; person coming within any of the three

2 M. & R. 35, a case under 6 Geo. IV. c. 108, classes described in 6 Geo. IV. c. 108, the

s. 34 (rep.), a count alleged that certain count was bad : and the Court held that

spirituous liquors were about to be im- the allegation that it was H.'s duty to seize

ported, in respect of which certain duties the goods, which upon importation were

would be payable, and that R. H. was a forfeited, was an allegation of matter of

person employed in the service of the cus- law. That being so, the facts from which

toms of our Lord the King, and that it was that duty arose ought to have been stated

the duty o£ R. H., as such person so em- in the count. If, indeed, it could be said

ployed in the service of the customs as to be the duty of every person employed in

aforesaid, to arrest and detain aU such goods the service of the customs to seize such

and merchandise as should within his goods, then the allegation would have been

knowledge be imported which, upon such sufficient. But it clearly was not the duty

importation thereof, would become for- of every such person, and therefore the

feited ; and that the defendant unlawfully indictment was bad. As to proof of charac-

solicited R. H. to forbear an arrest and ter of the official, see now s. 261 of the Act

detain the said goods ; it was objected, in of 1876, post, p. 386.

arrest of judgment, that as the law did not (Z) Substituted by 42 & 43 Vict. c. 21,

oast upon all persons in the service of the s. 14 and sohed. for s. 218 of the Customs

customs the duty of making seizures, and Consolidation Act, 1876.

384 Of Offences against the Revenue Laws. [book iv.

in the name of some officer of customs or excise, before one or more
justices of the peace in the United Kingdom' . . . 'provided always
that 2 & 3 Vict. c. 71, s. 44 (m), shall not apply to any offence against
the Customs laws : and provided that in any proceedings for any penalty
or forfeiture under the Customs Acts the fact that the duties of customs
have been secured by bond or otherwise shall not be pleaded or made
use of in answer to or in stay of any such proceedings.'

By sect. 53 of the Summary Jurisdiction Act, 1879 (42 & 43 Vict,
c. 49), 'The Summary Jurisdiction Acts shall, notwithstanding any special
provisions to the contrary contained in any of the statutes relating to
His Majesty's Eevenue under the control of the Commissioners of
Inland Revenue or the Commissioners of Customs, apply to all in-
formations, complaints, and other proceedings before a Court of Summary
Jurisdiction under or by virtue of any of the said statutes ' (n).

Offences on the Water.— By sect. 229 of the Act of 1876, ' Where
any offence shall be committed in any place upon the water not being
within any county of the United Kingdom, or where the officers have any
doubt whether such place is within the boundaries or Kmits of any such
county, such offence shall for the purposes of the Customs Acts be deemed
and taken to be an offence committed on the high seas ; and for the
purpose of giving jurisdiction under such Acts every offence shall be
deemed to have been committed, and every cause of complaint to have
arisen, either in the place in which the same actually was committed or
arose, or in any place on land where the offender or person complained
against may be or be brought ' (o).

Sect. 230, as amended in 1883 (46 & 47 Vict. c. 55, s. 8), provides
that where the attendance of a justice of the county where the offence
was committed cannot conveniently be obtained, resort may be had
to a justice of a neighbouring or adjoining county, or neighbouring or
adjoining borough having separate magisterial jurisdiction, and geo-
graphically situate within the county where the offence was committed.

Imprisonment. — By sect. 12 of the Customs Act, 1879 (42 & 43 Vict. c.
21) (oo), ' When any verdict shall pass or conviction be had against any
person for any offence against the Customs Acts, and he shall have been
adjudged to pay a penalty of one hundred pounds or upwards, the pre-
siding justice may, if for a first offence, commit the offender to one of
His Majesty's prisons for not less than six nor more than nine months,
and if for a subsequent offence, may order that the offender shall, in lieu
of payment of the penalty, be imprisoned, . . . with or without hard
labour, for a period of not less than six nor more than twelve months.'

By the proviso to sect. 53 of the Summary Jurisdiction Act, 1879
(42 & 43 Vict. c. 49), where the sum adjudged by conviction under or
by virtue of any of the said statutes (relating to inland revenue or customs)
' to be paid exceeds £50, the period of imprisonment imposed by a Court
of Summary Jurisdiction in respect of the non-payment of such sum,

(m) This enactment relating to the of justices of adjoining counties or boroughs

metropolitan police district was repealed see 39 & 40 Vict. c. 36, s. 230 ; 46 & 47

in 1884 (47 & 48 Vict. .;. 43, s. 4). Vict. o. 55, s. 8.

(«) This enactment overrides 11 & 12 (oo) Substituted for, and to be read as

Vict. c. 42, a. 35. s. 237 of the Act of 1876. See 42 & 43

(o) As to the attendance on emergency Vict. c. 21, a. 14.

CHAP. III.] Of Offences against the Customs. 385

or in respect of the default of a sufficient distress to satisfy such sum,
may exceed three months but shall not exceed six months.'

Proceedings for Forfeitures. — By sect. 255 of the Act of 1876, ' All in-
dictments or suits for any offences or the recovery of any penalties or for-
feitures under the Customs Acts shall, except in the cases where summary
jurisdiction is given to justices, be preferred or commenced in the name
of His Majesty's Attorney-General for England or Ireland, or of the Lord
Advocate of Scotland, or of some officer of customs or inland revenue.'

By sect. 256, ' In any prosecution for recovery of any fine, penalty,
or forfeiture incurred under the Customs Acts, His Majesty's Attorney
General for England, His Majesty's Attorney-General for Ireland, or
the Lord Advocate of Scotland, if satisfied that such fine, penalty, or
forfeiture was incurred without any intention of fraud or that it may
be inexpedient to proceed in the said prosecution, may enter a Twlle
-prosequi or otherwise on such information.'

Limitation of Time. — By sect. 257, ' All suits indictments or
informations brought or exhibited for any offence against the Customs
Acts in any Court or before any justice, shall be brought or exhibited
within three years next after the date of the offence committed ' {q).

Venue. — By sect. 258, ' Any indictment prosecution or information
which may be instituted or brought under the direction of the Com-
missioners of Customs for offences against the Customs Acts shall and
may be inquired of examined tried and determined in any county of
England when the offence is committed in England, and in any county
in Scotland when the offence is committed in Scotland, and in any county
in Ireland when the offence is committed in Ireland, in such manner
and form as if the offence had been committed in the said county where
the said indictment or information shall be tried ' (r).

Costs.— By sect. 5 of the Customs, &c.. Act, 1877 (40 & 41 Vict. c.
13), ' In all informations, prosecutions, suits, or proceedings at the suit
of the Crown under the Customs Acts, the same rule as to costs shall be
observed as in suits and proceedings between subject and subject.

Presumption and Evidence. — By sect. 259 of the Act of 1876, ' If in
any prosecution in respect of any goods seized for non-payment of duties,
or any other cause of forfeiture, or for the recovering any penalty or
penalties under the Customs Acts, any disputes shall arise whether the
duties of customs have been paid in respect of such goods, or whether
the same have been lawfully imported or lawfully unshipped, or concern-
ing the place from whence such goods were brought, then and in every
such case the proof thereof shall be on the defendant in such prosecution (s),
and where any such proceedings are had in the . . . High Court

(q) See R. v. Thompson, 16 Q.B. 832 ; an indictment, of a common assault on the

20 L. J. M. C. 13. prosecutor, who was an excise officer, the

(r) Upon 9 Geo. II. c. 35, s. 26 (rep.), Court of King's Bench arrested the judg-

which enacted that an assault committed ment, though the prosecutor was described

upon any of the officers of the customs and to be an excise officer, the offence being

excise should be tried in any county in laid in Surrey, and the venue in Middlesex.

England, in such manner and form as if R. w. Cartwright, 4 T. R. 490.
the offence had been therein committed, it (s) Where the proceedings are criminal,

was decided that the provision extended the Criminal Evidence Act, 1898 (61 & 62

only to revenue officers, qua officers : and Vict. u. 36), applies. See post, Bk. xiii. u. v.
a defendant having been found guilty, on

VOL. I, 2 C

386 Of Offences against the Revenue Laws. [book iv.

of Justice on the Eevenue side, the defendant shall be competent and
compellable to give evidence.'

By sect. 260, ' The averment that the Commissioners of Customs or
Inland Eevenue have directed or elected that any information or pro-
ceedings under the Customs Acts shall be instituted, or that any ship or
boat is foreign or belonging wholly or in part to His Majesty's subjects,
or that any person detained or found on board any ship or boat liable to
seizure is or is not a subject of His Majesty, or that any goods thrown
overboard, staved, or destroyed, were so thrown overboard, staved, or
destroyed to prevent seizure, or that any goods thrown overboard, staved,
or destroyed during chase by any ship or boat in His Majesty's service
or in the service of the Revenue, were so thrown overboard, staved, or
destroyed to avoid seizure, or that any person is an officer of customs or
excise, or that any person was employed for the prevention of smuggling,
or that the offence was committed within the limits of any port, or where
the offence is committed in any port of the United Kingdom, the naming
of such port in any information or proceedings shall be deemed to be
sufficient, unless the defendant in any such case shall prove to the
contrary.'

By sect. 261, ' If upon any trial a question shall arise whether any
person is an officer of the army, navy, marines, or coastguard duly
employed for the prevention of smuggling, or an officer of customs or
excise, his own evidence thereof, or other evidence of his having acted
as such, shall be deemed sufficient, without production of his commission
or deputation ; and every such officer and any person acting in his aid
or assistance shall be deemed a competent witness upon the trial of any
suit or information on account of any seizure or penalty as aforesaid,
notwithstanding such officer or other person may be entitled to the whole
or any part of such seizure or penalty, or to any reward upon the
conviction of the party charged in such suit or information.'

By sect. 262, ' Upon the trial of any issue, or upon any judicial hear-
ing or investigation touching any seizure, penalty, or forfeiture, or other
proceeding under the Customs Acts, or any Act relating to the excise,
or incident thereto, where it may be necessary to give proof of any
order issued by the Treasury, or by the Commissioners of Customs or
Inland Revenue respectively, the order, or any letter or instructions
referring thereto, which shall have been ofiicially received by any officer
of customs or excise for his government, and under which he shall have
acted as such officer, shall be admitted and taken as sufficient evidence
and proof of such order.'

By sect. 263, ' Condemnation by any justice under the Customs laws
may be proved in any Court of justice, or before any competent tribunal,
by the production of a certificate of such condemnation purporting to
be signed by such justice, or an examined copy of the record of such
condemnation certified by the clerk to such justice.'

Definitions.— Sect. 284. ' For the purposes of this or any other Act
relating to the Customs and in construing the same, the following terms,
when not inconsistent with the context or subject matter, shall have the
several meanings, and include the several matters and things hereinafter
prescribed and assigned to them ; that is to say :

CHAP. III.] Of Offences against the Excise. 387

' " Attorney-General " shall include solicitor-general, attorney-general
in the Isle of Man, procureur, or other chief law ofHcer of the Crown in
any of His Majesty's possessions abroad, where there is no attorney-general.

'"British possession" shall mean and include colony, plantation,
island, territory, or settlement belonging to His Majesty.

' " County " shall mean and include any city, county of a city, county
of a town, borough, or other magisterial jurisdiction where such construc-
tion is not inconsistent with the context.

' " Customs Acts " shall mean and include this and all or any other
Acts or Act relating to the Customs.

' " Drawback " shall include bounty.

' " His Majesty " shall mean His Majesty, his heirs and successors.

' " Importer " shall mean, include, and apply to any owner or other
person for the time being possessed of or beneficially interested in any
goods at and from the time of the importation thereof until the same are
duly delivered out of the charge of the officers of customs.

' " Justice " shall mean and include justice of the peace, county court
judge, recorder, sheriff depute, governor, deputy-governor, lieutenant-
governor, bailiff, chief magistrate, deemster, jurat, and any other magis-
trate in the United Kingdom and the Channel Islands.

' " Master " shall mean the person having or taking the charge or
command of any ship.

' " Official import lists and official export lists " shall mean any lists
which are now or shall from time to time be issued under the authority
of the Commissioners of the Treasury or Customs prescribing the denomi-
nations, descriptions, and quantity by tale, weight, measure, value, or
otherwise, by which articles of merchandise shall be required to be entered
on their importation into or exportation from the United Kingdom.

' " Proper officer of Inland Revenue," in the fourth section of the Act
of the thirty-seventh and thirty-eighth years of Her Majesty's reign, shall
mean " proper officer of customs " (t).

' " King's warehouse " shall mean any place provided by the Crown
or approved by the Commissioners of Customs for the deposit of goods
for security thereof and of the duties due thereon.

' " Warehouse " shall mean any place in which goods entered to be
warehoused may be lodged, kept, and secured.'

B. — Excise.

Most of the penalties and forfeitures imposed by the many statutes
relating to the excise are recoverable by information in the High Court
or by proceedings before a Court of Summary Jurisdiction (u), or relate to
forgery of licences, permits, and other documents (v), or to perjury or
false declarations (w).

The powers of search, arrest, detention, &c., under the Excise laws

(<) 37 & 38 Vict. 0. 46. s.^7, post. Vol. ii. p. 1721, ' Forgery.'
(u) See Highmore's Excise Laws {2nd (w) 1 & 2 Will. IV. c. 4, ss. 1, 4 ; 7 & 8

ed.), 1899. Geo. IV. c. 53, s. 31 ; 32 & 33 Vict. .;. 14,

(v) See 2 & 3 Will. IV. c. 16, ss. 3, 4, 13 ; «. 25, post, p. 451 et seq., ' Perjury.'

11 & 12 Vict. c. 121, s. 18 ; 26 Vict. c. 7,

2 C 2

388 Of Offences against the Revenue Laws. [book iv.

and the Customs Acts may be exercised interchangeably by officers of
either department and most of the excise is now under the management
of the Customs Department (x).

The Excise Management Act, 1827 (7 & 8 Geo. IV. c. 53), by sect. 40
enacts that, ' if any person, armed with any offensive weapon whatsoever,
shall with force or violence assault or resist any officer of excise, or
any person employed in the revenue of excise {y), or any person acting
in the aid or assistance of such officer or person so employed, who, in
the execution of his office or duty, shall search for, take, or seize, or
shall endeavour or offer to search for, take, or seize, any goods or com-
modities forfeited under or by virtue of this Act, or any other Act or
Acts of Parliament, relating to the revenue of excise or customs, or
who shall search for, take, or seize, or shall endeavour or offer to search
for, take, or seize any vessel, boat, cart, carriage, or other conveyance,
or any horse, cattle, or other thing used in the removal of any such goods
or commodities, or who shall arrest, or endeavour or offer to arrest, any
person carrying, removing, or concealing the same, or employed or
concerned therein, and liable to such arrest, then and in every such case,
it shall be lawful for every such officer and person so employed, and person
acting in such aid and assistance as aforesaid, who shall be so assaulted or
resisted, to oppose force to force, and by the same means and methods
by which he is so assaulted or resisted, or by any other means or methods,
to oppose such force and violence, and to execute his office or duty,
and if any person so assaulting or resisting such officer as aforesaid,
or any person so eniployed, or any person acting in such aid and assist-
ance as aforesaid, shall in so doing be wounded, maimed, or kUled, and
the said officer or person so employed, or person acting in such aid
and assistance as aforesaid, shall be sued or prosecuted for any such
wounding, maiming, or killing, it shall be lawful for every such officer,
or person so employed, or person acting in such aid and assistance, to plead
the general issue, and give this Act and the special matter in evidence
in his defence ; and it shall be lawful for any justice or justices of the
peace, or other magistrate or magistrates before whom any such officer
or person so employed, or person acting in such aid and assistance as
aforesaid, shall be brought for, or on account of, any such wounding,
maiming, or killing as aforesaid, and every such justice of the peace
and magistrate is hereby directed and required to admit to bail every
such officer, and every person so employed, and every person acting in
such aid and assistance as aforesaid, any law, usage, or custom to the
contrary thereof in anywise notwithstanding ' (2).

Venue. — By sect. 43, for the better and more impartial trial of any
indictment or information for any such violent assault as aforesaid,
' every such offence shall and may be inquired of, examined, tried,
and determined in any county in England, if such offence shall have

(a;) 7 & 8 Geo. IV. c. 53, s. 38 ; and see or filed for such assaults, are to be bound

Highmore Excise Laws, i. 28. with two sureties to answer the same, and

(y) 39 & 40 Vict. c. 36, a. 189, ante, p. 375, in default to be committed : by s. 42, if

and the oases on former Customs Acts in any offender be in prison for want of bail,

similar terms, collected ante, p. 376. a copy of the indictment or information

(z) By B. 41, persons against whom in- may be delivered to the gaoler with a notice

dictments or informations have been found of trial and proceedings had thereon.

CHAP, m.] Assessed Taxes. 389

been committed in England or in any of the islands thereof, or in any
county in Scotland, if the same shall have been committed in Scotland
or in any of the islands thereof, or in any county in Ireland, if the same
shall have been committed in Ireland or in any of the islands thereof,
in such manner and form as if the same oSence had been committed
in such county respectively (a) ; and that whenever any person shall be
convicted of any such violent assault or resistance as aforesaid, it shall
be lawful for the Court before which any such offender shall be convicted,
or which by law is authorised to pass sentence upon any such offender,
to award and order (if such Court shall think fit) sentence of imprisonment,
with hard labour, for any term not exceeding the term of three years,
either in addition to, or in lieu of, any other punishment or penalty
which may by law be inflicted or imposed upon any such oSender ; and
every such offender shall thereupon suffer such sentence in such place,
and for such term as aforesaid, as such Court shall think fit to direct ' (b).
Forcible opposition to the execution of the Spirits Act, 1880 (43 & 44
Vict. c. 24), is punishable under sect. 150 of that Act.

C. — Assessed Taxes.

Obstruction of officers of inland revenue or persons acting in their
aid in collecting taxes is now ordinarily punishable under sect. 11 oi
the Inland Eevenue Regulation Act, 1890 (53 & 54 Vict. c. 21) (c).

The following decisions upon Acts now repealed relate to assaults
on revenue officials engaged in the collection of assessed taxes.

In R. V. Ford (d), upon an indictment charging the defendants
with assaulting J. S., then being in lawful possession of goods seized
for £6 15.S. M., arrears of assessed taxes, and in another count with
a common assault, it appeared that the goods of one F. had been dis-
trained on his premises for taxes due from him, and J. S. had been left
in possession. In order to shew that the taxes had been regularly
demanded before putting in the distress, it was proved that the collector
had gone to F.'s house on January 23, and F. not being at home, had
demanded the taxes of a female who was there, and said that he had called
often before, and would distrain on the following day if they were not
paid. The woman answered that F. had been told before of the collector's
coming for taxes, but said he could not pay ; the collector left a message
with the woman, requesting F. to call on him, which F. afterwards did,
and stated that he was very poor and could not pay. It was objected
that this was not sufficient evidence of a demand and refusal within
the terms of 43 Geo. III. c. 99, s. 33 (e) ; but Denman, C. J., held that it

(a) This provision would probably be Cartwright, 4 T. R. 490.

held to extend only to assaults upon officers (6) Ss. 40, 41, and 43 have not been

when in the execution of their duty. If, repealed by subsequent legislation with

therefore, upon an indictment containing reference to the excise.

counts for assaulting an officer in the execu- (c) 24 & 25 Vict. c. 100, s. 38, does not

tion of his duty, and for a common assault, contain the provisions inserted in prior

the jury were to acquit on all the counts Acts as to assaults on revenue officers,

except on that for the common assault, the (d) 2 A. & E. 588.

judgment would be arrested if the venue (e) Repealed in 1880 and replaced by

were laid in any county except that in s. 86 of the Taxes Management Act (43 &

which the assault was committed. R. v. 44 Vict. c. 19).

390 Of Offences against the Revenue Laws. fsooK iV.

was not necessary to shew a refusal given by the householder himself,
or to the collector personally ; but that it was sufficient, if the circum-
stances shewed that the householder, from poverty or otherwise, would
not pay, and if the party meeting with the refusal was one authorised
to act for him : and he left it to the jury to say whether they were satisfied
that there had been a refusal. He also held that upon the second count,
which mentioned no sum, there might be a verdict against the defendants,
if the prosecutor was lawfully in possession for any amount. A motion
for a new trial was refused ; the Court holding that by the statute a
distress was to be taken only if there had been a demand and refusal of
the taxes, but nothing was said to apply that provision to particular
individuals, or particular sums ; and that it was sufficient if there had
been a demand of the taxes, which the party had understood, and he
had not objected to the amount, but had refused to pay (/).

In E. V. Clark (</), C. and A. were indicted for assaulting G., a peace
officer, in the execution of his duty, and for a common assault. T., a
collector of land-tax, had applied on October 28 to C. for arrears of land-
tax due from him, which had been repeatedly demanded before ; C. said,
' I suppose if I do not pay it, you are going to distrain 1 ' T. replied
that he probably should. C. answered, ' If you put your hand upon any-
thing, I will split your skull.' On November 29 following, T. went to
C.'s house, with B., G., and a third constable : he desired the two last to
remain outside, and to be on the alert, lest there should be a row ; he and
B. entered a room, and again demanded the arrears ; as soon as the
demand was made C. quitted the room, and directly afterwards he was
heard to fasten the house door ; upon this, B., by T.'s order, unfastened
the door, and brought in G. and the other constable. C. soon afterwards
returned into the room, with bank-notes in his hand, accompanied by ten
or twelve men, among whom was A. C. asked what G. did there ; and
B. answered that G. was there to aid and assist if required : upon this C.
said, ' I will not pay the taxes till the thief-catcher has left the room.'
G. refused to depart, upon which C. desired A. to put him out, saying that
he would be answerable ; A. then attempted to force G. out of the room,
and, in so doing, committed the assault in question. C. afterwards paid
the taxes with the notes in his hand. It was left to the jury to say,
whether T. introduced G. for the purpose of keeping the peace, and if
they thought he did so, they were directed to find a verdict of guilty ;
the jury found in the affirmative of the question left, and convicted both
defendants. Upon a motion for a new trial, it was contended that the
collector had no right to take a constable with him ; that it ought to
have been shewn that the collector had a warrant to distrain, or the book of
assessments with him ; but it was held that it was not necessary that the
collector should have either the warrant or the book of assessments with
him ; and although the statute was applicable only to cases where a house
or chest was to be broken open, and therefore the collector had no right
to take B. or any other person with him for the purpose of demanding the
money ; yet as the collector had good ground, from what had passed at

(/) As to the firat count, Denman, C.J., and the sum proved, fatal,
held the variance between the sum stated (g') 3 A. & E. 287.

CHAP. liij Assessed Taxes. 39 i

that time and on' tlie pTevioua occasion, to apprehend violence, he was
perfectly justified ini imtrod-ucing G. and the other constable to keep
the peace, and that G. was justified in remaining to prevent violence,
and consequently was assaulted whilst in the execution of his duty. And
although the collector had no right to take B, into the house on either
occasion, yet, as no objection was made to his- presence, it did not vary
fee case (h).

The other offences against the Acts relating to the Income Tax or Land
Tax which are indictable are in the nature of forgery, 'perjury, or false
declarations.

Income Tax. — Forgery of receipts or certificates given under thie?
Income Tax Act, 1842, or assisting in such forgery, or issuing such docu--
ments with intent to defraud the Crown or any corporation or person, is
felony punishable by penal servitude from three to fourteen years, or
imprisonment with or without hard labour for not over two years {i).

Wilfully and corruptly giving false evidence on oath or affirmation, in
an affidavit, deposition, or affirmation authorised by the Income Tax Act,
1842, is punishable as perjury, and may be tried in any county in which
the affidavit, &c., is exhibited to the Income Tax Commissioners {j).

Land Tax. — The forgery of land tax redemption certificates is felony [k)
punishable by penal servitude for life, or not less than three years, or by
imprisonment with or without hard labour for not more than two years (Z).

Perjury in matters under the Land Tax Acts is punishable under
42 Geo. III. c. 116, s. 193.

Death Duties. — Perjury with reference to death duties is punishable
under 48 Geo. III. c. 149, s. 37 (E), and 56 Geo. III. c. 156, s. 131 (I).

(h) The case turned to some extent on (k) 52 Geo. III. o. 143, s. 6.

38 Geo. III. u. 5, ». 17, which was repealed (I) By the joint effect of 24 & 25 Vict.

in 1898, as superseded by s. 86 of the c. 98, s. 48, post. Vol. ii. p. 1680, ' Forgery,'

Taxes Management Act, 1880. and 54 & 55 Vict. e. 69, a. 1, ante, pp. 211,

(i) 5 & 6 Vict. c. 35, a. 181 ; 54 & 55 212. The specific provisions of 52 Geo. III.

Vict. c. 69, s. 1, ante, pp. 211, 212. c. 143, a. 6, as to punishment, were repealed

(?) 5 & 6 Vict. c. 35, s. 180. in 1890 (S. L. R.).

( 392a )

CANADIAN NOTES.

OFFENCES AGAINST THE REVENUE LAWS.
8ee Dominion Customs Act. M.S.O. (1906) oh. 48.

A. — Customs.

False Declarations.

Entering place other than port of landing. R.S.C. ch. 48, sec.

186.
Goods imported not at port of entry. R.S.C. ch. 48, sec. 187.
Making untrue report, etc. R.S.C. ch. 48, sees. 188, 253.
Landing goods before due entry is made. R.S.C. ch. 48, sec. 189.
Goods found on board not included in report. R.S.C. ch. 48, sec.

190.
Breaking bulk. R.S.C. ch. 48, sec. 191.
Goods imported by night except uader permit. R.S.C. ch. 48,

sec. 192.
Vehicle containing goods. R.S.C. ch. 48, sec. 193.
Conductor of train making untrue report. R.S.C. ch. 48, sec.

194.
Forfeiture of goods and cars for unlawful importation by rail-
way. R.S.C. ch. 48, sec. 195.
Forfeiture of goods not corresponding with report. R.S.C. ch.

48, sec. 199.
Forfeiture of goods not corresponding with invoice. R.S.C. ch.

48, sec. 200.
Forfeiture of goods not mentioned in invoice or declaration.

R.S.C. ch. 48, sec. 201.
Forfeiture of prohibited goods. R.S.C. ch. 48, see. 202.
Forfeiture of medicinal preparations not properly marked.

R.S.C. ch. 48, sec. 203.
Possession of wreck without report or payment of duty, forfei-
ture of, etc. R.S.C. ch. 48, sec. 204.
Removing or altering wreck before warehoused. R.S.C. ch. 48,

sec. 205.
Making false invoice of goods. R.S.C. ch. 48, sees. 206, 253.
Possession of blank invoice certificates. R.S.C. ch. 48, sec. 207.
Person sending in false invoices cannot recover price of goods.

R.S.C. ch. 48, sec. 208.
Forfeiture for false statements in declaration. R.S.C. ch. 48,

sec. 209.

392& Offences Against Revenue Laws. [book iv.

Smuggling.

Seizure of vessels for fraudulent importation of goods. R.S.C.

eh. 48, sec. 196.
Procuring persons to assist in smuggling. R.S.C. ch. 48, see. 197.
Forfeiture of smuggled goods. R.S.C. ch. 48, see. 198.
Smuggling goods into Canada. R.S.C. ch. 48, sec. 206.
Seizure of goods and ship found hovering near coast with intent

to smuggle. R.S.C. ch. 48, sec. 210.
Seizure of prohibited or smuggled goods found in any vessel or

vehicle. R.S.C. ch. 48, sec. 211.
Placing dutiable goods in building upon the boundary line.

R.S.C. ch. 48, sec. 212.
Forfeiture of goods found in building upon boundary line.

R.S.C. ch. 48, sec. 213.
Seizure of goods found concealed on board vessel. R.S.C. eh. 48,

sec. 214.
Persons smuggling goods in company. R.S.C. ch. 48, sec. 215.
Being on board of smuggling vessel. R.S.C. ch. 48, sec. 216.
Resisting search of person. R.S.C. ch. 48, sec. 217.
Forfeiture and penalty for concealing prohibited or dutiable

goods on person. R.S.C. eh. 48, see. 218.
Keeping or selling, etc., goods unlawfully imported. R.S.C. ch.

48, see. 219.
Altering or defacing marks of customs on goods. R.S.C. ch. 48,

sec. 220.

Warehouses and Warehousing.
Unlawful removal of goods from customs warehouse. R.S.C. eh.

48, sec. 221.
Not warehousing or ex-warehousing goods entered therefor.

R.S.C. eh. 48, sec. 222.
Stores of ship relanded and sold in Canada. R.S.C. ch. 48,

sec. 223.
Goods ex-warehoused upon entry not corresponding shall be

forfeited. R.S.C. ch. 48, sec. 224.
Goods ex-warehoused upon entry not corresponding with report

inwards or not properly describing the goods. R.S.C. ch. 48,

sec. 225.
Cancelling or removing warehoused goods. R.S.C. ch. 48, sec. 226.
Obtaining access to goods in bonded car. R.S.C. ch. 48, sec. 227.
Obtaining fraudulent access to warehouse. R.S.C. ch. 48, sec.

228.
Opening and unpacking goods under control of customs. R.S.C.

ch. 48, sec. 229.
Refusing to return goods to customs. R.S.C. ch. 48, sec. 230.
Unlawful warehousing of goods. R.S.C. ch. 48, sec. 231.

CHAP. III.] Entry Outwards. 392c

Appraisement.

Refusing to act as appraiser. R.S.C. ch. 48, sec. 232.
Refusing to attend and answer interrogatories. R.S.C. ch. 48,

sec. 233.
False swearing of owner. R.S.C. ch. 48, sec. 234.

Non-payment of Duty.

Selling goods without payment of duty. R.S.C. ch. 48, sees.
235, 236.

Entry Outwards and Exportation.

Entering goods outward and not exporting. R.S.C. ch. 48, sec.

237.
Re-landing, or failing to perform obligation to export. R.S.C.

ch. 48, sec. 238.
Carrying goods out of limits of port of outward entry before

entry. R.S.C. ch. 48, sec. 239.
Others than owners making entry outwards. R.S.C. ch. 48, sec.

240.
Failure to make report and entry of goods shipped in Canada.

R.S.C. ch. 48, sec. 241.
Seizure of prohibited goods carried coastwise. R.S.C. ch. 48,

sec. 242.
Making false entry. R.S.C. ch. 48, sec. 253.
Contravening any provision as to exportation. R.S.C. ch. 48,

sees. 243, 245.
Contravening provisions as to goods in transit. R.S.C. ch. 48,

sees. 244, 245.
Vessel leaving without a clearance. R.S.C. ch. 48, sec. 246.

Contravention of Government Regulations.

Generally as to contravention. R.S.C. ch. 48, sec. 247.
Where vessel is of value of $400. R.S.C. ch. 48, sec. 248.

Breach of Duty by Customs Officer.

Penalty for illegal search of person. R.S.C. ch. 48, sec. 249.
Neglecting to convey goods seized to custom house. R.S.C. ch.

48, sec. 250.
Collector allowing' payment of duty to be avoided or deferred.

R.S.C. ch. 48, sec. 251.
Collusive seizure in release, accepting bribes, etc. R.S.C. ch. 48,

sec. 252.

Falsification of Documents.

Counterfeiting, falsifying, or forging, or using counterfeited
documents. R.S.C. ch. 48, sec. 254.

392d Offences Against Revenue Laws. [book iv.

Refusal to Answer Questions.

Additional penalty for. R.S.C. ch. 48, sec. 255.

Refusal to maintain or accommodate customs officer on ship.
R.S.C. ch. 48, sec. 256.

Refusal to produce invoice, etc. R.S.C. ch. 48, sec. 257.
Goods.

Theft of goods under seizure. R.S.C. ch. 48, sec. 258.

Offering goods for sale as prohibited or smuggled. R.S.C. ch.
48, sec. 260.
Vessels.

Refusal of vessels to stop when required in King's name. R.S.C.
ch. 48, sec. 259.
Powers and Duties of Officers.

Generally. R.S.C. ch. 48, sec. 146.

May search and detain vessels and seize goods. R.S.C. ch. 48,
sec. 147.

May enter building and seize goods during day-time. R.S.C. ch.
48, sec. 148.

As to building on boundary line. R.S.C. ch. 48, sec. 149.

May board vessels and have access to all parts thereof. R.S.C.
eh. 48, sec. 150.

May station officers thereon. R.S.C. ch. 48, sec. 151.

May call in aid to seize goods, etc. R.S.C. ch. 48, sec. 152.

May examine vessels hovering near coast. R.S.C. ch. 48, sec. 154.
Search of Person.

On reasonable suspicion. R.S.C. ch. 48, sec. 155.

Before justice of the peace. R.S.C. ch. 48, sec. 156.

Of females. R.S.C. ch. 48, sec. 156.

Reasonable despatch to be used. R.S.C. ch. 48, see. 157.
Writs of Assistance.

Issue of. R.S.C. ch. 48, sees. 158, 159.

Powers of officer under. R.S.C. ch. 48, see. 152.

Proceedings iipon Seizure or Alleged Penalty or Forfeiture In-
curred.

Report of officer to commissioner of customs. R.S.C. ch. 48, sec.
174.

Commissioner to notify owner or claimant. R.S.C. ch. 48, see.
175.

Commissioner to report to Minister. R.S.C. ch. 48, sec. 176.

Decision of Minister in the matter. R.S.C. ch. 48, sec. 177.

Decision of Minister is final when. R.S.C. ch. 48, sec. 178.

Minister may refer matter to Court. R.S.C. ch. 48, sec. 179.

Hearing by Court. R.S.C. ch. 48, sees. 180, 181.

Where claim is not over $100.00. R.S.C. ch. 48, sec. 182.

CHAP. III.] Procedure. 392e

Procedure in Court.

Production and deliveiy of books, invoices, etc. R.S.C. ch. 48,

sees. 183, 184, 185.
Action may proceed in Exchequer Court or other Superior Court.

R.S.C. ch. 48, sec. 265.
Proceedings to be by Attorney- General or officer of customs.

R.S.C. ch. 48, sec. 266.
In Quebec. R.S.C. ch. 48, sec. 267.
Procedure shall be according to practice of Court. R.S.C. ch.

48, sec. 268.
Venue. R.S.C. ch. 48, sec. 269.
Arrest of defendant if leaving province. R.S.C. ch. 48, sees.

270, 274.
Averments in pleadings. R.S.C. ch. 48, sec. 271.
Disposal of costs and how levied. R.S.C. ch. 48, sec. 272.
Nolle prosequi may be entered by Attorney- General. R.S.C.

ch. 48, see. 573.
Judgment of Court. R.S.C. ch. 48, sees. 275, 276.
Claims, filing of, etc. R.S.C. ch. 48, sec. 277.
Claimant to give security. R.S.C. ch. 48, sec. 278.
Limitation of actions. R.S.C. ch. 48, see. 279.
Seizure to be commencement of action. R.S.C. ch. 48, sec. 280.

Appeals.

From convictions by justices of peace. R.S.C. ch. 48, sec. 281.
From Exchequer or Superior Court, R.S.C. ch. 48, sec. 282.
From Circuit Court in Quebec. R.S.C. ch. 48, sec. 283.
No security on appeal need be given by Attorney- General.

R.S.C; ch. 48, see. 284.
Restoration of goods not prevented by appeal if security is given.

R.S.C. ch. 48, sec. 285.

Procedure, Evidence.

Certified copies and extracts of invoices to be evidence. R.S.C.

ch. 48, sec. 261.
Certified copies of official papers to be evidence. R.S.C. ch. 48,

sec. 262.
Existence of two different sets of invoices of goods is prima facie

evidence of fraud. R.S.C. .ch. 48, sec. 263.
Burden of proof. R.S.C. ch. 48, sec. 264.

Procedure in Court.

Procedure for contravention of regulations. R.S.C. ch. 48, sec.

285.

392/ Offences Against Revenue Lmvs. [book iv.

Disposition of Articles Seized.

To be placed temporarily in custody of nearest collector of

customs. R.S.C. ch. 48, sec. 166.
To be condemned unless notice of claim given within one month.

R.S.C. ch. 48, sec. 167.
Proceedings for condemnation independent of notice. R.S.C. ch.

48, sec. 168.
Goods seized to be taken to nearest customs house. R.S.C. ch.

48, sec. 169.
Goods stopped on suspicion of being stolen to be taken to nearest

customs house. R.S.C. ch. 48, sec. 170.
Delivery of goods seized upon deposit of security. R.S.C. ch.

48, sec. 171.
Deposit of money to be made to cover penalty and costs. R.S.C.

ch. 48, sees. 171, 172.
Limitation of time for claim. R.S.C. ch. 48, sec. 172.
Animals or perishable goods may be sold as if condemned.

R.S.C. ch. 48, sec. 173.

Protection of Officers of Customs.

No action to be commenced against customs officer while proceed-
ing pending in respect of the Customs Act. R.S.C. ch. 48,

sec. 160.
Defendant officer may tender amends and plead tender in bar

to action. R.S.C. ch. 48, sec. 161.
Limitation of time for action against customs officer. R.S.C. ch.

48, sec. 162.
Discretion of Court in action against customs officer. R.S.C.

ch. 48, sec. 163.
No action against Crown or customs officer pending forfeiture

proceedings. R.S.C. ch. 48, sec. 164.
No action for search or detention if reasonable cause therefor.

R.S.C. ch. 48, sec. 165.

( m )

BOOK THE FIFTH.

OT OFFENCES AGAINST RELIGION AND PUBLIC WORSHIP.

CHAPTER THE FIRST.

OF BLASPHEMY.

At common law it is an indictable misdemeanor {a), punishable by fine
and (or) imprisonment (b), to speak or otherwise publish any matter
blaspheming God, e.g., by denying His existence or providence, or
contumeliously reproaching Jesus Christ, or vilifying or bringing into
disbelief or contempt or ridicule (c) Christianity in general (d), or
any doctrine of the Christian religion, or the Bible (e), or the Book of
Common Prayer (/).

Christian Religion. — Upon the trial of an information in the Court
of King's Bench, for uttering expressions grossly blasphemous, Hale,
C.J., said, that ' such kind of wicked blasphemous words were not only
an offence to God and religion, but a crime against the laws, state, and
government, and therefore punishable in this Court : for to say religion
is a cheat is to dissolve all those obligations whereby civil society is
preserved ; and Christianity is part of the laws of England, and therefore
to reproach the Christian religion is to speak in subversion of the law ' (g).

Where the defendant had been convicted for publishing blasphemous
libels, in which the miracles of our Saviour were turned into ridicule
and contempt, and His life and conversation calumniated, it was moved
in arrest of judgment that this was not an offence within the cognisance
of the temporal courts at common law ; but the Court would not suffer
the point to be argued, saying that the Christian religion, as established

(a) The offence does not seem to have (c) R. v. Richard Carlile, 1 St. Tr. (N. S.)
been dealt with by the common-law Courts 1388, Abbott, C.J. R. v. Mary Carhle,
until after the aboUtion of the Courts of 1 St. Tr. (N. S.) 1033.
Star Chamber and High Commission. See (d) R. v. Woolston, Fitzgibbon, 66.
Traske's case (Com. Stell), Hob. 382. At- (e) Whether the Old or the New Testa-
wood's case, Cro. Jac. 421. R. v. Curl, 2 ment. R. v. Hetherington [1840], 4 St.
Str. 790 ; 1 Hawk. c. 5. Tr. (N. S.) 563 ; 5 Jur. 529.

(6) At the discretion of the Court. The (/) In 1817 W. Hone was tried for pub-
older authorities say that infamous corpo- lishing parodies on the Catechism, the
real punishment might be imposed for Litany, and the Athanasian Creed, and
blasphemy. Offenders were at one time acquitted. See Odgers on Libel (4th ed.),
put in the piUory. R. v. Annet, 1 W. Bl. 451.

395; 3 Burn Ecel. Law (9th ed.), 386. (g) R. w. Taylor, Ventr. 293 ; 3 Keb. 607,

And see 2 Rolle Abr. 78. They could be 621. See the information in Tremayne,

put under recognisances to be of good be- 226.
haviour for life ; vide R. u. Annet.

394 Of Offences against Religion, dc. moH V.

in this kingdom, is part of the law ; and, therefore, that whatever derided
Christianity derided the law, and consequently must be an ofience against
the law (h).

The accuracy of these dicta, and of the old authorities upon which
they are based, was challenged arguendo, in E. v. Hetherington (ij, and
to some extent questioned in E. v. Eamsay (/), but Hale's conclusion
has been accepted as the law in many cases (k).

On the trial of a criminal information against the defendant for
publishing a false, malicious, and scandalous libel upon a religious order,
professing the Eoman Catholic faith, called the Scorton Nunnery, Alder-
son, B., said, ' a person may, without being liable to prosecution for it,
attack Judaism or Mahomedanism, or even any sect of the Christian
religion (save the established religion of the country), and the only
reason why the latter is in a different situation from the other is, because
it is the form established by law, and is therefore a part of the constitution
of the country. In like manner and for the same reason any general
attack on Christianity (l) is the subject of a criminal prosecution, because
Christianity is the established religion of the country. The defendant
here has a right to entertain his opinions, to express them, to discuss
the subject of the Eoman Catholic religion, and its institutions ' ; but
he ruled that there was no right in so doing to attack the characters of
individuals (m).

By Statute. — Some provisions have also been made upon this subject
by statutes. 1 Edw. VI. c. 1 (n), enacts, that persons reviling the Sacra-
ment of the Lord's Supper by contemptuous words or otherwise, shall
suffer imprisonment. 1 Eliz. c. 2 (o), enacts, that if any minister shall
speak anything in derogation of the Book of Common Prayer, he shall, if
not beneficed, be imprisoned one year for the first offence, and for life
for the second (2 & 3 Edw. VI. c. 1, s. 3) ; and if he be beneficed, shall
for the first offence be imprisoned six months and forfeit a year's value
of his benefice ; for the second, shall be deprived and suffer one year's
imprisonment ; and for the third, shall in like manner be deprived and
suffer imprisonment for life. And that if any person whatsoever shall
in plays, songs, or other open words, speak anything in derogation,
depraving, or despising of the said book, or shall forcibly prevent the
reading of it, or cause any other service to be read in its stead, he shall
forfeit for the first offence 100 marks ; for the second, 400 ; and for the
third, shall forfeit all his goods and chattels, and suffer imprisonment
for life. This Act (1 Edw. VI. c. 1) was at the Eestoration applied to the
Prayer Book of 1662 (14 Car. II. c. 4, s. 1).

The Toleration Act, 1688 (1 Will, and M. c. 18), s. 17, enacted, that
whosoever should deny in his preaching or writing the doctrine of the
Blessed Trinity, should lose all benefit of the Act for granting toleration.

(i^) K. V. Woolston, Barnard, 162 ; 2 Str. (1) See R. v. Woolston, Fitzgibbon, 66.

834 ; Fitzgib. 64. (m) R. v. Gathercole, 2 Lew. 237, 254.

(j) 4 St. Tr. (N. S.) 577 : 5 J. P. 496. («.) Rep. 1 Mary, c. 2, but revived

ij) 15 Cox, 231, Coleridge, C.J. 1 Eliz. c. 1.

(7c) R. V. Williams [1797], 26 St. Tr. 656. (o) Partly repealed 7 & 8 Vict. c. 102 :

R. V. Richard Carlile, 4 St. Tr. (N. S.) 1423, 9 & 10 Vict. c. 59 ; but not so as to affect

Abbott, C.J. R. V. Tunbridge, 1 St. Tr. the provisions here mentioned.
(N. S.) 1369n, Bayley, J.

CHAP. L] Of BiaspJiemy. 395

This section was repealed in 1813 by 53 Geo. III. c. 160 : but while it
was in force it was considered as operating to deprive the offender
of the benefit of the Toleration Act, leaving the punishment of the
offence as for a misdemeanor at common law (p). An Act of 1698
(9 Will. III. c. 35 (9 & 10 Will. III. c. 32 (Ruffhead)), entitled
' an Act for the more effectual suppressing of blasphemy and pro-
faneness ') enacts, that if any person, educated in or having made
profession of the Christian religion, shall, by writing, printing, teaching,
or advised speaking, [deny any one of the Persons in the Holy Trinity
to be God (q), or] should assert or maintain there are more gods than one,
or should deny the Christian religion to be true, or the Holy Scriptures
to be of divine authority, he should, on lawful conviction on indictment
or information in any of His Majesty's Courts at Westminster, at the
assizes, by the oath of two or more credible witnesses, upon the first offence
be rendered incapable to hold any office or place of trust ; and for the
second be rendered incapable of bringing any action, being guardian,
executor, legatee, or purchaser of lands, and should suffer three years'
imprisonment without bail (r). The statute does not abrogate the
common law, but is cumulative (s). Thus in R. v. Richard Carlile (t),
made in arrest of judgment on an information for a blasphemous libel,
on the ground that this statute had put an end to the common law
offence : in summing up to the jury, Abbott, C. J., said : ' If the whole
Act of Will. III. had been repealed, the common law would still have
remained ' ; and on a motion made the Court were clear that it had
not. On few branches of the law has there been more change in the
policy of prosecution, and the views of the judges, than in that relating
to blasphemy. Prosecutions were numerous early in the nineteenth
century (u). Since 1837 they have been few. There is one reported
in 1857 (v). The latest of any importance were in 1882 (w) and 1908 (x).
The opinions of the judges have also changed with respect to the essential
elements of the offence : and the gist of the offence is not now considered
to be in holding an opinion (y) contrary to the general tenets of Christi-
anity, or the particular doctrines of the Church of England, which may
be heretical, but in the mode of expressing it (z). In R. v. Woolston (a),

(p) R. V. Williams [1797], 26 St. Tr. 563, Gen. v. Pearson, 3 Mer. 353, 379, 398, 405,

Kenyon, C.J. Holt on Libel, 66. 407. One was in respect of the publication

iq) The words in italics were repealed in of Shelley's ' Queen Mab.' K. v. Moxon

1813 (53 Geo. III. c. 160, s. 2). See R. v. [1841], 4 St. Tr. (N. S.) 693, which resulted

Waddington, 1 B. & C. 26 ; 1 St. Tr. (N. S.) in a conviction, not followed by judgment.

1339. For a prosecution on the repealed As to the motives for the prosecution and

words, see R. v. Elwell [1726], Odgers on the value of the case as an authority, see

Libel (4th ed.), 449. R. v. Hicklin, L. R. 3 Q.B. 372, Blackburn, J.

(r) But the delinquent publicly renoun- (v) R. v. Pooley, 8 St. Tr. (N. S.) 1089.

cing his error in open Court, within four See Steph. Dig. Cr. Law (6th ed.) ; 2 Steph.

months after the first conviction, is to be Hist. Cr. L. 475.

discharged for that once from all disabilities. (w) R. v. Ramsay, 15 Cox, 231, Cole-

(s) R. V. Woolston, Barnard, 162; 2 St. ridge, L.C.J.

Tr. 834 ; Fitzgib. 64. R. v. WiUiams, 26 (x) R. a. Boulter [1908], 72 J. P. 181,

St. Tr. 563. R. v. Eaton, 31 St. Tr. 927. Phillimore, J.

(«) 1 St. Tr. (N. S.) 1387. Cf. R. v. Wad- {y) See Odgers on Libel (4th ed.), 448,

dington, 1 B. & C. 26 ; 1 St. Tr. (N. S.) 1342. quoting Evans v. Chamberlain of London

(m) There were seventy- three convictions [ 1767], Lord Mansfield,

between 1821 and 1834. See the statistics (z) Shore v. Wilson, 9 CI. & F. 353. But

collected, 1 St. Tr. (N. S.) 1385, and list of de- see Cowan v. MUburn, L. R. 2 Ex. 280.

cisions 1 St. Tr. (N. S.) 1039n. SeealsoAtt.- (a) Fitzgibbon, 66.

Of Offences against Religion, &g. [bookV.

an indictment for publishing a blasphemous book, it was moved in arrest
of judgment, that as the intent of the book was only to shew that the
miracles of Jesus Christ were not to be taken in their literal sense, it
could not be considered as attacking Christianity in general, but only
as striking against one received proof of His being the Messiah ; to which
the Court said, that the attacking Christianity in the way in which it
was attacked in this publication was destroying the very foundation of
it ; and that, though there were professions in the book that its design
was to establish Christianity upon a true bottom by considering these
narrations in Scripture as emblematical and prophetical, yet that such
professions were not to be credited, and that the rule is allegatio contra
factum non est admittenda. But the Court also said, that though to write
against Christianity in general is clearly an offence at common law, they
laid stress upon the word general, and did not intend to include disputes
between learned men upon particular controverted points ; and, in
delivering the judgment of the Court, Eaymond, C.J., said : ' I would
have it taken notice of that we do not meddle with any differences of
opinion, and that we interpose only where the very root of Christianity
itself is struck at.'

It is said by Blackstone (b) that ' contumely and contempt are what
no establishment can tolerate : but, on the other hand, it would not be
proper to lay any restraint upon rational and dispassionate discussions
of the rectitude and propriety of the established mode of worship.' In
Starkie on Libel (1st ed.), 496, 497, it is said that ' it may not be going
too far to infer, from the principles and decisions, that no author or
preacher who fairly and conscientiously promulgates the opinions with
whose truth he is impressed, for the benefit of others, is, for so doing,
amenable as a criminal ; but a malicious and mischievous intention is
in such case the broad boundary between right and wrong ; and that if
it can be collected, from the offensive levity with which so serious a
subject is treated, or from other circumstances, that the act of the
party was malicious, then, since the law has no means of distinguish-
ing between different degrees of evil tendency, if the matter published
contain any such tendency, the publisher becomes amenable to jus-
tice ' (c). In K. V. Mary Carlile {d), Best, J., ruled that the jury must
inquire whether the alleged libel was a temperate discussion of the truth
of Christianity or an attempt to vilify and degrade it, to excite prejudice
and not to convince.

In R. V. Richard Carlile (e), the Court appears to have considered
that a fair, reasonable, open, and temperate discussion of the religion of
this country was not blasphemy.

It is a question for the jury whether or not the words amount to a
blasphemous libel. The wilful intention to insult and mislead others
by means of licentious and contumelious abuse offered to sacred subjects

(6) 4 Com. 51. mer was declared to be ' full o£ contradic-

(d [1821] 1 St. Tr. (N. S.) 1033. The (e) [1819] (second trial), 1 St. Tr. (N. S.)

prosecution was in respect of a pamphlet, 1387, 1390n. As to first trial, see 4 St. Tr.

in which the morality of the Old and New (N. S.) 1423. See also authorities collected

Tostaments were contrasted, and the for- L. T. Journal, July 22, 1882.

CHAP. I.] Of Blasfhemy. 397

or by wilful misrepresentations or wilful sophistry calculated to mislead
the ignorant and unwary, is the criterion and test of guilt. A malicious
and mischievous intention, or what is equivalent to such an intention
in law as well as morals — a state of apathy and indifference to the interests
of society — is the broad boundary between right and wrong (/). 'To
asperse the truth of Christianity cannot per se be sufficient to sustain a
criminal prosecution for blasphemy. To maintain that merely because
the truth of Christianity is denied without more, therefore the person
denying it may be indicted for blasphemous libel is, I venture to think,
absolutely untrue. It is a view of the law which cannot be historically
justified. Parliament, the supreme authority as to old law, has passed Acts
which render the dicta of the judges in former times no longer applicable.
And it is no disparagement to their authority to say that observations
which were made under one state of the law are no longer applicable
under a different state of things. As I observed before, I put it as a
reductio ad absurdum that if it was enough to say that " Christianity was
part of the law of the land," then there could be no discussion on any
part of the law of the land, and it would be impossible, for example, to
discuss in a grave argumentative way the question of a monarchical form
of government, as Harrington discussed it in his " Oceana," without
being liable to be indicted for a seditious libel. I was not aware that what
I then put as a reductio ad absurdum had been judicially held, and that a
man had actually been convicted of a seditious libel (R. v. Bedford,
Gilbert's Rep. K.B. 297) (g), for discussing such a question, his work con-
taining, as the report states, no reflection upon the existing government.
No judge or jury in our day would convict a man of seditious libel in such
a case, — it would be regarded as monstrous. I have no doubt there-
fore that the mere denial of the truth of Christianity is not enough to
constitute the offence of blasphemy. . . . Whatever the older cases may
have been, the fact remains that Parliament has altered the law as to
religion. It is no longer the law that none but believers in Christianity
can hold office in the State. The state of things is no longer the same
as when the older judgments were pronounced, — judgments, how-
ever, which have been strained, I think, beyond what they will justly
warrant. . . . The defendants have admitted that these publications
were intended to be attacks on Christianity and on the Hebrew Scrip-
tures, and have cited a number of passages from approved writers which
they say are to the same effect. That may be so . . . and I lay it
down as law that if the decencies of controversy are observed, even
the fundamentals of religion may be attacked without the writer being
guilty of blasphemy. But no one can fail to see the difference between
the works of the writers who have been quoted and the language used
in the publications now before us, and I am obliged to say that it is differ-
ent not only in degree but in kind and nature. There is a grave and
earnest tone, a reverent, perhaps I might even say a religious, spirit
about the very attacks on Christianity itself which we find in the authors

(/) B,. V. Bradlaugh, 15 Cox, 217, Cole- man. The nature of the libel is not in-
ridge, C.J. dioated in the report, which only gires

(g) 1713. The defendant was a clergy- the title, ' The Hereditary Rights, &c.'

398 Of Offences against Religion, &c. [book v.

referred to which shews that what they aimed at was not insult to the
opinions of the majority of mankind nor to Christianity itself, but real,
quiet, earnest pursuit of truth. And if the truth at which they have
arrived is not that which you and I have been taught and at which
perhaps we might now arrive, it is not because their conclusions differ
from ours that they are to be deemed fit subjects for criminal prosecu-
tion ' {h).

The rulings above given have been criticised by Sir James Stephen
as amounting to a judicial change in the law(r). But their substance
has been accepted as correct in the most recent prosecution, R. v.
Boulter (/), an indictment for blasphemous speeches, where Phillimore, J.,
directed the jury as follows : ' A man is free to speak and teach what
he pleases as to religious matters, though not as to morals. He is free
to teach what he likes as to religious matters even if it is unbelief.
But when we come to consider whether he has exceeded the limits, we
must not neglect to consider the place where he speaks, and the persons
to whom he speaks. A man is not free in a public place where passers
by who might not willingly go to listen to him knowing what he was
going to say might accidentally hear his words, or where young people
might be present. A man is not free in such places to use coarse ridicule
on subjects which are sacred to most'people in the country. He is free to
use arguments.' He suggested further that it was for the jury to draw
the line, and they should do so in favour of the accused if he were arguing
in favour of his honest belief or unbelief, but not if he were making a
scurrilous attack on the beliefs of most people in a public place where
passers by might have their ears offended or the young might come.
Such conduct would tend to a breach of the peace by hot-headed believers.

In a case where a pamphlet stated that Jesus Christ was an impostor,
a murderer in principle, and a fanatic, a juryman asked whether a work
denying the divinity of our Saviour was blasphemous ; and Abbott,
C.J., answered that a work speaking of Jesus Christ in the language
used in the pamphlet was blasphemous ; and on a motion for a new trial,
on the ground that this was a wrong answer, the Court held that the
answer was right {h).

In R. V. Williams {I), in pronouncing the judgment of the Court of
King's Bench upon a person convicted of blasphemy in respect of having
published Paine's 'Age of Reason,' Ashhurst, J., said, that, although
the Almighty did not require the aid of human tribunals to vindicate
His precepts, it was, nevertheless, fit to shew our abhorrence of such
wicked doctrines as were not only an offence against God, but against
all law and government, from their direct tendency to dissolve all the
bonds and obligations of civil society ; and that it was upon this ground
that the Christian religion constituted part of the law of the land. That
if the name of our Redeemer was suffered to be traduced, and His holy
religion treated with contempt, the solemnity of an oath, on which the
due administration of justice depended, would be destroyed, and the

(h) R. V. Ramsay, 15 Cox, 231, Coleridge, (A) R. v. Waddington, 2 B. & C. 26.

L.C.J. (I) [1797] 26 St. Tr. 696. See Holt on

(i) Staph. Dig. Cr. Law (6th ed.), 125. Libel, 69, note (o) ; 2 Starkie on Libel,

0) 72 J. P. 188, Phillimore, J. 141 ; Odgers on Libel (4th cd.), 445.

CHAP. I.] Of Blasphemy. 399

law be stripped of one of its principal sanctions, the dread of future
punishments (m).

In K. v. Petcherine (?i), a Roman Catholic priest was indicted for burning
a copy of the Authorised Version of the Scriptures, but was acquitted.

It has already been stated that it is immaterial whether the publica-
tion is oral or written (o). Committing mischievous matter to print or
writing, and thereby affording it a wider circulation, may be an aggra-
vation of the offence, and affect the measure of punishment (p). On
the other hand, the open speaking of blasphemous matter in a public
place where many must pass may be a graver offence than abuse of religion
at a ticket meeting of a secular society (q).

Pleas, &c. — The privilege attaching to reports of judicial proceedings
does not cover the republication of blasphemous matter. This was so
laid down in R. v. Mary Carlile (r), where the defendant published the
proceedings at the trial of Richard Carlile (s), in which he read to the
jury the whole of Paine's 'Age of Reason.'

In R. V. Creevey (t), which related to proceedings in Parliament,
Bayley, J., said : ' It has been argued that the proceedings of Courts of
justice are open to publication. Against that, as an unqualified proposi-
tion, I enter my protest. Suppose an indictment for blasphemy, or a
trial where indecent evidence was necessarily introduced ; would every
one be at liberty to poison the minds of the public, by circulating that
which for the purposes of justice the Court is bound to hear ? I should
think not : and it is not true, therefore, that in all instances the proceed-
ings of a Court of justice may be published.''

The provisions of the Law of Libel Amendment Act, 1888 (51 & 52
Vict. c. 64), giving privilege to fair and accurate reports in newspapers
of proceedings in courts of justice and public meetings, expressly
exclude blasphemous matter from the privilege (m).

The provisions of the Libel Act, 1843 (6 & 7 Vict. c. 96), s. 6, as to
justification, do not extend to blasphemous libel (v). At common law it
is no answer to an indictment for blasphemy to prove the truth of the
attack on Christianity which is the subject of the indictment (w) ; in one
case the Court went so far as to punish as contempt the persistence of
the defendant in reviling Christianity in the course and as part of his
defence (x). In other cases the Court has stopped attempts to repeat or
justify the alleged blasphemy as part of the defence (y).

(m) This libel attacked the truth of the infra.

Old and New Testaments ; arguing that («) 3 B. & Aid. 131; 1 St. Tr. (N. S.) 1387.

there was no genuine revelation of the will (t) 1 M. & S. 223, 231.

of God existing in the world ; and that (u) Ss. 3, 4, post, p. 1021 et seq.

reason was the only true faith which laid (w) R. v. Duffy [1846], 6 St. Tr. (N. S.)

any obUgations on the conduct of mankind. 303 ; 9 Ir. L. R. 329 ; 2 Cox, 45.

In other respects also it ridiculed and vili- [w) R. v. Tunbridge [1822], 1 St. Tr.

fied the prophets, our Saviour, His dis- (N. S.) 1368, an indictment for publishing

ciples, and the Holy Scriptures. ' Palmer's Principles of Nature.' Cooke v.

(re) [1855] 8 St. Tr. (N. S.) 1086 ; 7 Cox, Hughes, Ry. & M. 114.

79. (x) R. V. Davison [1821], 1 St. Tr. (N. S.)

(o) See R. v. Boulter, 72 J. P. 188, Philli- 1366.

more, J. (y) R. v. Richard Carlile [1819], 4 St.

(p) 2 Starkie on Libel (2nd ed.), 144 ; Tr. (N. S.) 1243 ; R. v. Mary Carlile [1821],

Odgers on Libel (4th ed.), 446 et seq. 1 St. Tr. (N. S.) 1033, 1042, 1049. R. v.

iq) R. V. Boulter, 72 J. P. 188. Tunbridge, 1 St. Tr. (N. S.) 1369. Cooke v.

(r) 1 St. Tr. (N. S.^ 1033. R. v. Creevey, Hughes, Ry. & M. 114.

400 Of Offences against Religion, &c. [»o°^ ^•

The provisions of the Act of 1843, sect. 7 (2), as to exculpatory
evidence to displace a frima facie case of publication, apply to
blasphemous libels [a). The offence is not cognisable at quarter
sessions (6).

Punishment. — Blasphemy, being a misdemeanor at common law, is
punishable by fine or imprisonment, without hard labour, or both (c).
The quantum is in the discretion of the Court. As to the punishment
under 9 WUl. III. c. 35, vide ante, p. 395. Under the Criminal
Libel Act, 1820 (60 Geo. III. & 1 Geo. IV.), c. 8, the composing, printing,
or publishing of a blasphemous libel is punishable on a second conviction
by such punishment as might in 1820 be inflicted in cases of high
misdemeanors (sect. 4) {d). By the same Act provision is made for
ordering search for, seizure, and disposal of copies of blasphemous libels
after conviction (sects. 1, 2).

(2) Post, p. 1040. was that the jurisdiction was in the Court

(a) R. V. Bradlaugh, 15 Cox, 227, Cole- of High Commission,

ridge, C.J. (c) Vide ante, p. 249.

(6) 5 & 6 Vict. 0. 38, s. 1. This seems (d) Ante, p. 249. So much of the Act as

always to have been the rule. Atwood's prescribed banishment was repealed in 1830

case, Cro. Jac. 421. The contention there (11 Geo. IV. & 1 Will. IV. c. 73, s. 1).

( 400c )

CANADIAN NOTES.

OF BLASPHEMY.

Blasphemous Libel. — Code sec. 198.

(401)

CHAPTER THE SECOND.

OF DISTURBANCES IN CHURCHYARDS OR PLACES OP PUBLIC
WORSHIP (a).

Affrays in a church or churchyard have always been esteemed very
heinous offences, as being very great indignities to the Divine Majesty,
to whose worship and service such places are immediately dedicated ;
and upon this consideration all irreverent behaviour in these places
has been esteemed criminal by the makers of our laws. So that
many disturbances occurring in these places are visited with punishment
which, if they happened elsewhere, would not be punishable at all ; as
bare quarrelsome words : and some acts are criminal which would be
commendable if done in another place ; as arrests by virtue of legal
process (b).

It seems to have been recognised that it was a misdemeanor to obstruct
divine service in a church, but a criminal information was refused on the
ground that the alleged disturbance arose out of the intrusion as preacher
by the rector of a methodist who did not hold a licence to preach from
the bishop of the diocese (c).

Several statutes have been passed for the purpose of preventing
disturbances in places of worship belonging to the established church,
and also in those belonging to congregations of Protestant Dissenters and
Roman Catholics.

By an Act of 1551 (5 & 6 Edw. VI. c. 4), s. 1, ' if any person whatso-
ever shall ... by words only, quarrel, chide, or brawl in any church
or churchyard . . . then it shall be lawful unto the ordinary of the
place where the same offence shall be done, and proved by two lawful
witnesses, to suspend every person so offending ; that is to say, [if he be
a layman, ab ingressu ecclesice, and (d)] if he be a clerk, from the ministra-
tion of his office, for so long time as the said ordinary shall by his discretion
think meet and convenient, according to the fault.'

By sect. 2, ' if any person or persons shall smite or lay violent hands
upon any other, either in any church or churchyard, then ipso facto every

(a) The first Act of Uniformity (5 & 6 Q.B.D. 671. Marshall v. Graham [1907],

Edw. VI. c.l),s. 2, imposes a general duty on 2 K.B. 112, 129, Phillimore, J.
people to go to church, and conferred a (6) 1 Hawk. c. 63, ». 23.

general right correlatively to go to church. (c) R. v. Wroughton, 3 Burr. 1683.

These provisions are repealed as to persons (d) By the Ecclesiastical Courts Juris-

dissenting from the doctrines or worship of diction Act, 1860 (23 & 24 Vict. u. 32), this

the Church of England, and as to pecuniary Act is repealed as to persons not in holy

penalties for non-attendance at church (9 & orders (s. 4), and the jurisdiction of Eccle-

10 Vict. 0. 89). Subject to these repeals, the siastical Courts to adjudicate on suits for

Act still applies to members of the Church brawling against persons not in holy orders,

of England. See Taylor v. Timson, 20 is taken away.

VOL. I.

2 D

402 Of Offences against Religion, &c. tBOOK v.

person so offending shall be deemed excommunicate, and be excluded
from the fellowship and company of Christ's congregation ' (e).

This statute was passed in aid of the ecclesiastical law for the protec-
tion of the sanctity of public worship, and in aid of the common law (e).
It deals with three offences : (1) quarreUing by words only ; {2.) smitmg
or laying violent hands on another ; (3) striking with a weapon, or
drawing a weapon with intent to strike (/).

In 1787 (27 Geo. III. c. 31, s. 2) it was enacted that, ' no suit shall be
commenced in any JEcclesiastical Court ... for striking or brawling in
any church or churchyard after the expiration of eight months from the
time when such offence shall have been committed . . .'

In the construction of the Act of 1551 it has been held that the Ecclesi-
astical Court might proceed upon the two first sections ; for though the
offence mentioned in the second section of smiting in the church or
churchyard is an offence at common law, and the offender may be
indicted for it, yet, besides this, he may, under the statute, be ipso facto
excommunicated ((/). No previous conviction is necessary in this case ;
though, if there be one, the ordinary may use it as proof of the fact {h).

Cathedral churches, and the churchyards which belong to them, are
within the statute {i) . And it is no excuse for a person who strikes another
in a church, &c., to shew that the other assaulted him {j). But church-
wardens, or perhaps private persons, who whip boys for playing in the
church, or pull off the hats of those who obstinately refuse to take them
off themselves, or gently lay their hands on those who disturb the
performance of any part of divine service, and turn them out of the
church, were never within the meaning of the statute {k).

By an Act of 1553 (1 Mary, st. 2, c. 3), s. 2, ' if any person or persons,
of their own power and authority ... at any time after the 20th day
of Decembernext coming (1553), do or shall willingly and of purpose, by
open and overt word, fact, act, or deed, maliciously or contemptuously
molest, let, disturb, vex, or trouble, or by any other unlawful ways or
means disquiet or misuse, any preacher or preachers, licensed, allowed,
or authorised to preach by the Queen's Highness, or by any archbishop
or bishop of this realm, or by any other lawful ordinary, or by any of
the universities of Oxford and Cambridge, or otherwise lawfully authorised
or charged by reason of his or their cure, benefice, or other spiritual
promotion or charge, in any of his or their open sermon, preaching, or
collation, that he or they shall make, declare, preach, or pronounce,
in any church, chapel, churchyard, or in any other place or places, used,
frequented, or appointed, or that hereafter shall be used or appointed to
be preached in ; or if any person or persons shall maliciously, willingly,
or of purpose, molest, let, disturb, vex, disquiet, or otherwise trouble,
any parson, vicar, parish priest, or curate, or any lawful priest, preparing,

(e) Smiting in a church or churcliyard is the Ecclesiastical Court acted wo saMe

a common-law offence. Wilson y Greaves, animce. Lord Mansfield, C.J. : 'We pre

1 Burr. 240, 243 Lord Mansaeld. Pen- ceed to p«„i^^, they to amend.'

ha lo s case, Cro. Eliz. 231. (i) Dothick's case, 1 Leon. 248.

(/) Wilson V. Greaves, uhi sup. (j) i Hawk. c. 63 s 28

!?It^'^km -o a- I a W Id. ibid. ». 29. See notes (a) (p. 401)

(ft) Id. ibid. Proceedings for damages and (e) svpra. ^ i \f

in either clause would be prohibited, for

CHAP. 11.] Of Disturbing Public WorsUp. 403

saying, doing, singing, ministering or celebrating the mass, or other
such divine service, sacraments or sacramentals, as was most commonly-
frequented and used in the last year of the reign of the late sovereign
lord King Henry the Eighth, or that at any time hereafter shall be allowed,
set forth, or authorised, by the Queen's Majesty ; or, if any person or
persons . . . after the said 20th day of December shall contemptuously,
unlawfully, or maliciously pull down, deface, spoil, abuse, break, or
otherwise unreverently handle or order the most blessed, comfortable,
and holy sacrament of the Body and Blood of our Saviour Jesus Christ,
commonly called the Sacrament of the Altar, being, or that shall be, in
any church or chapel, or in any other decent place, or the pyx or canopy
wherein the said sacrament is or shall be ; or unlawfully, contemptuously,
or maliciously, of their own power or authority, pull down, deface, spoil,
or otherwise break, any altar or altars, or any crucifix or cross, that
now or hereafter shall be in any church, chapel, or churchyard : that then
every such offender, his or their aider, procurer, or abettor, aiders,
procurers, or abettors, immediately and forthwith, after any of the said
act or acts, or other the said misdemeanors so committed, shall be appre-
hended by any constable or constables, churchwarden or churchwardens
of the said parish, town, or place where the said offence or offences shall
be so committed, made, or done, or by any other, or by any other officer
or officers, or by any other person or persons then being present at the
time of the said offence or offences so unlawfully committed, made, or
done': and being so apprehended, shall be brought before some justice of
the peace, by whom he shall, upon due accusation, be committed forth-
with ; and within six days next after the accusation the said justice,
with one other justice, shall diligently examine the offence ; and if the
two justices find the person guilty, by proof of two witnesses, or con-
fession, they shall commit him to gaol for three months, and further to
the quarter sessions next after the end of the three months ; at which
sessions he is upon repentance to be discharged, finding surety for his
good behaviour for a year ; and if he will not repent, he is to be further
committed till he does (l).

The statute of 1553 merely gave to the common law cognisance of an
offence, which was before punishable by the ecclesiastical law. To fall
within that statute, the party must maliciously, wilfully, or of purpose,
molest the person celebrating divine service. The plaintiff on a Sunday
presented a notice to the parish clerk, and desired him to read it. The
clerk, after consulting the minister, refused to do so. After the Nicene
Creed had been read, and whilst the minister was walking from the com-
munion table to the vestry-room, and whilst no part of the service was
actually going on, the plaintiff stood up in his pew and read a notice that
a vestry would be held to choose churchwardens, whereupon the minister
desired a constable to take him out of the church, which the constable
did, and detained him an hour after the service was over, and then allowed
him to go upon promising to attend before a magistrate the next day.

(/) 1 Mary, seas. 2, c. 3, s. 1. The Act is to the book of Common Prayer in use under

printed in the revised edition of the statutes Acts of subsequent sovereigns. 1 Hawk,

and is specially saved from repeal by 23 & e. 63, n. 31 ; Gibs. 372.
24 Vict. c. 32, s. 6. It was held to apply

2d2

404 Of Offences against Religion, &c. [^ooK V.

It was held, that although the constable might be justified in removing
him from the church, and detaining him until the service was over, he
could not detain him afterwards to take him before a magistrate under
this statute. Abbott, C.J.. said: 'Had the notice been read by the
plaintiff whilst any part of the service was actually going on, we might
have thought that he had done it on purpose to molest the minister ; but
the act having been done during an interval when no part of the service
was in the course of being performed, and the party apparently supposing
that he had a right to give such a notice, I am not prepared to say that the
1 Mary, st. 2, c. 3, warranted his detention in order that he might be
taken before a justice ' (m).

The statute further provides, that persons rescuing offenders so appre-
hended as aforesaid, or hindering the arrest of offenders, shall suffer
like imprisonment, and pay a fine of five pounds for each offence (n).
And if any offenders are not apprehended, but escape, the escape is to
be presented at the quarter sessions, and the inhabitants of the parish
where the escape was suffered are to forfeit five pounds (o).

Precedents are to be met with of indictments for breaking the windows
of a church, by firing a gun against them (p) : but it has been doubted
whether such an indictment is sustainable, as being for a mere
trespass {q).

By sect. 3 of the Act of Uniformity of 1558 (1 Eliz. c. 2) (r), ' If any
person or persons whatsoever, after the said feast of the Nativity of
St. John the Baptist next coming, 24 June, 1559 . . . shall, by open
fact, deed, or by open threatenings, compel or cause, or otherwise
procure or maintain any parson, vicar, or other minister in any cathedral
or parish church, or in chapel, or in any other place to sing or say any
common or open prayer, &c. ... or that by any of the said means shall
unlawfully interrupt or let any parson, vicar, or other minister in any
cathedral, parish church, chapel, or any other place to sing or say common
or open prayer, or to minister the sacraments or any of them in such
manner and form as is mentioned in the said book (s) : that then every
such person being lawfully convicted in form aforesaid ' {i.e., ' according
to the laws of this realm, by verdict of twelve men, or his own confession,
or by the notorious evidence of the fact ' (sect. 1) ), ' shall forfeit to
the Queen ... for the first offence 100 marks . . .' or in default of
payment within six weeks of conviction imprisonment for six months,
on a second conviction 400 marks, or in default, &c., imprisonment
for twelve months, and, on a third conviction, forfeiture of all his goods
and chattels and imprisonment for life. The Act of 1558 was in 1662
(14 Car. II. c. 4) applied to the Prayer Book then put into use.

Methodists and dissenters from the Established Church have a right
to protection if interrupted in their decent and quiet devotions (<).

(m) Williams v. Glenister, 2 B. & C. 699. (r) Specially saved from repeal by 23 &

It was also held that the case did not come 24 Vict. u. 32, s. 6.

within the Toleration Act, 1 Will. & M. {s) i.e.. The Common Prayer Book autho-

0. 18, fsost, p. 405. rised by 5 & 6 Edw. VI. c. 1, as altered by

(n) S. 2. 1 Eliz. c. 1, 8. 1.

(o) S. 3. («) R. V. Wroughton, 3 Burr. 1683, 1684,

(p) 2 Chit. Cr. L. 23. Lord Mansfield. This does not refer to

(g) Id. ibid., and see anU, p. 16. any statute.

CHAP. II.] Of Disturbing Public Worship. 405

The Toleration Act of 1688 (IWill.&M. c.l8) (u) provides (sect.l5)(v),
that ' if any person or persons, at any time or times after the 10th day of
June ' (1688) ' do and shall, willingly and of purpose, maliciously or con-
temptuously, come into any cathedral or parish church, chapel, or other
congregation permitted by this Act, and disquiet or disturb the same, or
misuse any preacher or teacher, such person or persons, upon proof
thereof before any justice of peace, by two or more sufficient witnesses,
shall find two sureties to be bound by recognisance in the penal sum cf
fifty pounds, and in default of such sureties shall be committed to prison,
there to remain till the next general or quarter sessions ; and upon con-
viction of the said offence at the said general or quarter sessions, shall
suffer the pain and penalty of twenty pounds, to the use of the King's and
Queen's Majesties, their heirs and successors ' (w).

Before this statute the Court of King's Bench refused to grant a
certiorari to remove an indictment found at the sessions against a person
not behaving himself modestly and reverently at the church during
divine service ; for, although the offence was punishable by ecclesiastical
censures, the Court considered it properly came within the cognisance
of the justices of the peace (x). An indictment upon the Toleration
Act, sect. 15 (18), found at quarter sessions, may be removed by certiorari
before verdict, notwithstanding the words of the statute, which seem at
the first view to confine the cognisance of the offence to the justices in the
first instance, and in the next to the quarter sessions (y).

The oaths taken by a preacher under this Act (z) were matter of record,
and could not be proved by parol evidence ; but it was not necessary,
upon an indictment for disturbing a dissenting congregation, to prove
that the minister had taken the oaths (a). It is no defence to such an
indictment that the defendant committed the outrage for the purpose
of asserting his right to the situation of clerk (b). And it has been held
that a congregation of foreign Lutherans, conducting the service of their
chapel in the German language, are within the protection of the statute (c).
Upon the conviction of several defendants, each of them is liable to a
penalty of twenty pounds (d).

The Toleration Act only applies where the thing is done wilfully, and
of purpose to disturb the congregation or misuse the minister (e).

By the Places of Religious Worship Act, 1812 (52 Geo. III. c. 155),
s. 12, ' If any person or persons, at any time after the passing of this Act
(July 29, 1812), do and shall wilfully and maliciously or contemptuously
disquiet or disturb any meeting, assembly, or congregation of persons

(m) This Act was repealed in 1871 (34 & by the enactments next to be mentioned.

35 Vict. u. 48), except ss. 5, 15, and so {x) Anon., 1 Keb. 491. Burn's Just. tit.

much of s. 8 as specifies the service and ' Put)ho Worship.'

offices from which certain persons are (y) R. v. Hube, 5 T. R. 542. R. v. Wad-
exempt. • ley, 4 M. & S. 508.

{v) This section is described as s. 18 in (z) These oaths were abolished in 1871

Ruffhead's edition of the statutes and in (34 & 35 Vict. c. 48).

23 & 24 Vict. c. 32, s. 6, by which it is (a) R. v. Hube, Peake, 131.

specially saved. (6) Id. ibid.

(w) A similar provision as to Roman (c) Id. ibid.

Catholic congregations, made by 31 Geo. (d!) R. v. Hube, 5 T. R. 542.

III. c. 32, s. 10, was repealed in 1871 (34 (e) Williams v. Glenister, 2 B. & C. 699,

& 35 Vict. u. 116, S. L. R.), as superseded Abbott, C.J.

406 Of Offences against Religion, c&c. [^^^o^ v.

assembled for religious worship, permitted or authorised by this Act, or
any former Act or Acts of Parliament, or shall in any way disturb, molest,
or misuse any preacher, teacher, or person officiating at such meetmg,
assembly, or congregation, or any person or persons there assembled ;
such person or persons so offending, upon proof thereof before any justice
of the peace by two or more credible witnesses, shall find two sureties
to be bound by recognisances in the penal sum of fifty pounds to answer
for such offence ; and in default of such sureties shall be committed to
prison, there to remain till the next general or quarter sessions ; and
upon conviction of the said offence at the said general or quarter sessions
shall suffer the pain and penalty of forty pounds.' By sect. 14 nothing
contained in the Act shall extend to Quakers, nor to any meetings or
assemblies for religious worship held or convened by them.

By the Eoman Catholic Churches Act, 1832 (2 & 3 Will. IV. c. 115),
s. 1, British subjects professing the Roman Catholic religion were, as to
their places for religious worship in Great Britain, made subject to the
same laws as Protestant dissenters in England.

Sect. 2 of the Religious Disabilities Act, 1846 (9 & 10 Vict. c. 59), makes
places for religious worship of His Majesty's subjects professing the
Jewish religion subject to the same laws as His Majesty's Protestant
subjects dissenting from the Church of England ; and by sect. 4 of the
same Act, ' all laws now (August 18, 1846) in force against the wilfully
and maliciously or contemptuously disquieting or disturbing any meeting,
assembly, or congregation of persons assembled for religious worship
permitted or authorised by any former Act or Acts of Parliament, or the
disturbing, molesting, or misusing any preacher, teacher, or person
officiating at such meeting, assembly, or congregation, or any person or
persons there assembled, shall apply respectively to all meetings, assem-
blies, or congregations whatsoever of persons lawfully assembled for
religious worship, and the preachers, teachers, or persons officiating at such
last-mentioned meetings, assemblies, or congregations, and the persons
there assembled.'

By the Liberty of Religious Worship Act, 1855 (18 & 19 Vict. c. 86),
s. 1, ' nothing contained ' (in the recited Acts — 1 Will. & M. sess. 1, c. 18,
and 52 Geo. III. c. 155, supra) ' shall apply, (1), to any congregation or
assembly for religious worship held in any parish or ecclesiastical dis-
trict, and conducted by the incumbent, or in case the incumbent is not
resident, by the curate of such parish or district, or by any person author-
ised by them respectively ; (2), to any congregation or assembly for
religious worship meeting in a private dwelling-house or on the premises
belonging thereto ; (3), to any congregation or assembly for religious
worship meeting occasionally in any building or buildings not usually
appropriated to purposes of religious worship. And no person per-
mitting any such congregation to meet as herein-mentioned in any place
occupied by him shall be liable to any penalty for so doing.' The
same Act further provides (sect. 2) that so much of the Acts of 1832 and
1846 as {swpra) relates to the places of religious worship of Roman Catholics
and Jews ' shall be respectively read as applicable to the laws to which
Protestant dissenters are subject for the time being after the passing of
this Act ' (August 14, 1855).

CHAP. II.] Of Disturbing Public Worship. 407

By the Ecclesiastical Courts Jurisdiction Act, 1860 (23 & 24 Vict. c. 23) ,
s. 2, ' any person (/) who shall be guilty of riotous, violent, or indecent be-
haviour ((/), in England or Ireland, in any cathedral church, parish ordistrict
church or chapel of the Church of England and Ireland, or in any chapel of
any religious denomination, or in England in any place of religious worship
duly certified under the provisions of The Places of Worship Eegistra-
tion Act, 1855 (h), whether during the celebration of divine service or
at any other time, or in any churchyard or burial ground, or who shall
molest, disturb, vex, or trouble, or by any other unlawful means disquiet
or misuse any preacher duly authorised to preach therein, or any clergy-
man in holy orders ministering or celebrating any sacrament, or any
divine service, rite, or office (i) in any cathedral, church, or chapel, or
in any churchyard or burial ground, shall, on conviction thereof before two
justices, for every such offence be liable to a penalty of not more than £5
for every such offence, or may, if the justices before whom he shall be
convicted think fit, instead of being subjected to any pecuniary penalty,
be committed to prison for any time not exceeding two months.' By
sect. 3, every offender ' after the said misdemeanor so committed
immediately and forthwith may be apprehended by any constable or
churchwarden of the parish or place ' where the offence is committed
(sect. 3). An appeal lies to quarter sessions from any conviction (sect. 4).
By sect. 36 of the Offences against the Person Act, 1861 (24 & 25 Vict,
c. 100), ' Whosoever shall, by threats or force, obstruct or prevent, or
endeavour to obstruct or prevent, any clergyman or other minister in or from
celebrating divine service or otherwise officiating in any church, chapel,
meeting house, or other place of divine worship, or in or from the performance
of his duty in the lawful burial of the dead in any churchyard or other
burial place, or shall strike or offer any violence to, or shall, upon any civil
process, or under the pretence of executing any civil process, arrest any
clergyman or other minister who is engaged in, or to the knowledge of the
offender is about to engage in, any of the rites or duties in this section
aforesaid, or who to the knowledge of the offender shall be going to
perform the same or returning from the performance thereof, shall be
guilty of a misdemeanor, and being convicted thereof shall be liable, at
the discretion of the Court, to be imprisoned for any term not exceeding
two years, with or without hard labour ' (j).

( f ) This enactment applies to clergy as (j) This section was new in England in

well as laity. Valiancy v. Fletcher [1897], 1861, except that^part which apphes to the

1 Q.B. 265. Persons in holy orders are arrest of any clergyman while performing

also hable to proceedings in Ecclesiastical divine service, or going to perform the

Courts under 5 & 6 Edw. VI. u. 4 {supra, same, or returning from the performance

p. 401), or the Clergy Discipline Act, 1892 thereof, which was contained in both 9

(55 & 56 Vict. c. 32). Girt v. Fillingham Geo. IV. c. 31, s. 23 (E), and 10 Geo. IV.

[1901], Prob. 176. c. 34, s. 27 (I). The rest of the clause was

[g) This Act applies even when the be- framed on the Irish Acts of 27 Geo. III.

haviour is under claim of right. Asher v. c. 15, s. 5 ; 40 Geo. III. c. 96, s. 5 ; 5 Geo.

Calcraft, 18 Q.B.D. 607. IV. c. 25, s. 5 ; and 5 & 6 Vict. sess. 2,

(A) 18 & 19 Vict. c. ■- c. 28, ss. 7, 19. The amendments consist

(i) Including an ordination service. in including ministers not of the Church of

Kensit v. Dean and Chapter of St. Paul's England and Ireland, and all places of

[1905], 2 K.B. 249. But not collecting an divine worship, and all burial places, and in

offertory. Copes v. Barber, L. R. 7 C. P. adding the endeavour to prevent or ob-

393. struct, the offering any violence to, and the

408 Of Offences against Religion, &c. [book v.

By the Burial Laws Amendment Act, 1880 (43 & 44 Vict. c. 41), which
provides for burials without the rites of the Church of England, sect. 7,
' All burials under this Act, whether with or without a religious service,
shall be conducted in a decent and orderly manner, and every person
guilty of riotous, violent, or indecent behaviour at any burial under this Act,
or wilfully obstructing such burial or any such service as aforesaid thereat,
or who shall in any such churchyard or graveyard as aforesaid deliver
any address not being part of or incidental to a religious service permitted
by this Act, and not otherwise permitted by any lawful authority, or
who shall, under colour of any religious service or otherwise in any such
churchyard or graveyard, wilfully endeavour to bring into contempt or
obloquy the Christian religion, or the belief or worship of any church
or denomination of Christians, or the members or any minister of any
such church or denomination, or any other person, shall be guilty of a
misdemeanor.'

By sect. 8, ' All powers and authorities now existing by law for the
preservation of order and for the prevention and punishment of dis-
orderly behaviour in any churchyard or graveyard may be exercised in
any case of burial under this Act in the same manner and by the same
persons as if the same had been a burial according to the rites of the
Church of England.'

Where a Protestant lecturer held meetings in public places in Liverpool
and used language and gestures highly insulting to the religion of the
numerous Eoman Catholic inhabitants, it was held that a magistrate
had jurisdiction to bind him over to be of good behaviour. It was con-
sidered but not directly decided that the power to put under such
recognisances attaches where language, though not directly inciting to a
breach of the peace, is calculated to cause breaches of the peace by
others {k).

The facts attending disturbances of religious assemblies may some-
times justify proceedings at common law for conspiracy or riot (Z) : and
under sect. 11 of the Malicious Damage Act, 1861 (24 & 25 Vict. c. 97) (m),
it is a felony for persons riotously assembled to demolish or pull down
any church or chapel, or any chapel for the religious worship of persons
dissenting from the worship of the United Church of England and Ireland .

arrest under pretence of executing any civil minister). R. v. Cheere, 4 B. & C. 902. As

process of, any clergyman or minister en- to hard labour, &c., see ante, p. 212.

gaged in or about to engage in any of the (k) Wise v. Dunning [1902], 1 K.B. 167.

rites or duties mentioned in this clause. (I) See Preced. 2 Chit. Cr. L. 29.

The indictment should allege that the per- (m) Post, p. 418.
son obstructed is a clergyman (or other

( 408a )

CANADIAN NOTES.

OF DISTURBANCES IN CHURCHYARDS OR PLACES OF WORSHIP.

Obstructing Officiating Clergymen. — Code sec. 199.

The offence of unlawfully obstructing divine service is not made
out where the clergyman obstructed had no legal claim to the posses-
sion of or use of the church premises and was in point of law himself
a trespasser thereon. But an indictment for obstructing a clergyman
in celebrating divine service will not be quashed for failure to allege
therein that the clergyman was in lawful charge of the church or
place of worship. R. v. Wasyl Kapij (1905), 9 Can. Cr. Cas. 186.

Violence to Officiating Clergyman. — Code sec. 200.

Disturbing Meetings for Religious Worship or Special Purposes. —
Code sec. 201.

A person who enters a hall, leased by a religious association or
body, while a meeting for religious worship is being held in it under
the direction of officers of the association, and addressing himself
to the assemblage, says that he is a Catholic and a French Canadian,
as most of them are, that they should not stay where they are, and
calls upon them to leave, is guilty of the offence of disturbing a reli-
gious meeting, under Cr. Code sec. 201. R. v. Gauthier, 11 Can. Cr.
Cas. 263.

A meeting of the electors called by one of the candidates during
a municipal election is not included. R. v. Lavoie, 6 Can. Cr. Cas. 39.

( 409 )

BOOK THE SIXTH.

OF DISTUBBANCES OP THE PUBLIC PEACE.

CHAPTEE THE FIKST.

OF RIOTS, ROUTS, UNLAWFUL ASSEMBLIES AND AFFRAYS.

Sect. I. — Riots.

A. Common Law.

Riot. — A riot is a tumultuous disturbance of the peace by three persons (a)
or more, who asserable together of their own authority, with an intent
mutually to assist one another against any who shall oppose them in the
execution of some enterprise of a private nature, and afterwards actually
execute the enterprise (aa) , in a violent and turbulent manner, to the terror of
the people, whether the act intended were of itself lawful or unlawful (b).
That is to say doing the act whether lawful or unlawful in a manner
calculated to inspire terror is an essential element in the offence (c).

This definition was in substance adopted by Charles, J., in the case
of the Trafalgar Square Riots (d). According to the latest judicial defini-
tion (e), ' There are five necessary elements of a riot : (1) a number of
persons, three (/) at least ; (2) common purpose ; (3) execution or con
ception of the common purpose ; (4) an intent to help one another by

(a) Women are punishable as rioters, 11 Mod. 116, Holt, C.J., said: ' The books
but infants under the age. of discretion are are obscure in the definition of riots. I
said not to be punishable. 1 Hawk. c. 65, take it, it is not necessary to say they assem-
s. 14. Vide ante, pp. 61, 98. bled for that purpose, but there must be an

{aa) Some act must be done. R. v. unlawful assembly; and as to what act

Vincent, 9 C. & P. 91 ; R. v. Neale, ibid. will make a riot, or trespass, such an act as

431. will make a trespass will make a riot. If a

(b) 1 Hawk. c. 65, ss. 1-5. See R. v. number of men assemble with arms, in ter-
Birt, 5 C. & P. 154, Patteson, J. Three rorem populi, though no act is done, it is a
persons or more is the correct description of riot. If three corne out of an alehouse, and
the number of persons necessary to consti- go armed, it is a riot.' Coke's definition of
tute a riotous meeting ; but in Hawkins riot (3 Inst. 176) is not now accepted. See
(o. 65, S3. 2, 5, 7) the words ' more than Field v. Receiver of Metropolitan Police
three persons ' are three times over inserted [1907], 2 K.B. 853, 859.

instead of ' three persons or more ' ; which (c) Vide post, p. 410.

in Bum's Just. tit. ' Riot,' s. 1, is remarked (d) R. v. Cunninghame Graham, 16 Cox,

as an instance that, in a variety of matter, 420.

it is impossible for the mind of man to be (e) Field v. Receiver of Metrop. Police

always equally attentive. The description [1907], 2 K.B. 853, 860, PhiUimore and

of riot stated in the text, and taken from Bray, JJ. In that case (at p. 858) aU the

Hawkins, is submitted as that which would earlier authorities are collected and dis-

probably be deemed most correct at the cussed.

present time. It should be observed, how- ( / ) See R. v. Scott, 3 Burr. 1262. R. v.

ever, that riot has been described differ- Beach, 2 Cr. App. R. 189.

cntly by high authority. In E. v. Soley,

410 Of Disturbances of the Public Peace. [book vi.

force if necessary against any person who may oppose them in the execu-
tion of their common purpose ; (5) force or violence ' used in the execution
of the common purpose, ' not merely used in demolishing {g), but displayed
in such a manner as to alarm at least one person of reasonable firmness
and courage ' {h). Unless all these elements are present the offence of riot
is not committed.

The definition of riot does not apply to cases in which the law authorises
force. In such cases it is not only lawful, but also commendable, to
make use of it ; as for a justice of the peace, sheriff or constable, or
perhaps even for a private person (i), to assemble a competent number
of people in order with force to suppress rebels, or enemies, or rioters ;
and afterwards with such force actually to suppress them (/) ; or for
a justice of peace, who has a just cause to fear a violent resistance, to
raise the fosse comitatus, in order to remove a force in making an entry
into, or detaining of, lands (Jc). The persons gathered to make
such resistance constitute an unlawful assembly. And it is the duty
of a sheriff who finds any resistance in the execution of a writ to take
with him the posse comitatus, and go in proper person to do execution,
and he may arrest the resisters and commit them to prison, and every
such resister is guilty of a misdemeanor (I).

The injury or grievance complained of, and intended to be revenged
or remedied by a riotous assembly, must relate to some private quarrel
only, e.g., pulling down a mill owned by an obnoxious proprietor or
procuring the liberation or better treatment of prisoners (m), breaking
down inclosures of lands in which the inhabitants of a town claim a
right of common, or taking possession of tenements the title whereof
is in dispute, or such like matters relating to the interests or disputes of
particular persons, in no way concerning the public. The proceedings
of a riotous assembly for a public or general purpose, as e.g., to take
possession of a town by surprise, terror or force, with the object of carrying
out some general political purpose (n), or to pull down aU inclosures (o),
and also resisting the King's forces, if sent to keep the peace, may amount
to overt acts of insurrection, i.e., of high treason by levying war against
the King (p).

Eiot must be in terrorem populi (q), i.e., in every riot there must be
such actual force or violence, or at least such apparent tendency thereto,
as would naturally strike terror into the people ; as the show of arms,
threatening speeches, or turbulent gestures ; but it is not necessary
that personal violence should be committed (r). It is enough if sufficient

(?) See post, p. 418. (m) R. v. Vincent, 9 C. & P. 109. R. v.

(h) See R. v. Langford, C. & M. 602, Frost, 9 C. & P. 94n., 129 ; 4 St. Tr. (N. S. )

post, p. ill. 85. R. t). Hardie, 1 St. Tr. (N. S.) 623, 765.

(i) Post, p. 433. {») R. V. Frost, 9 C. & P. 94n., 129. See

()■) See 13 Hen. IV. o. 7, post, p. 433. R. v. Gordon, 21 St. Tr. 614.

(k) See 15 Rich. II. o. 2, post, p. 432. (o) See Kel. (J.) 76.

{I) Sheriffs Act, 1887 (50 & 51 Vict. (p) 4 Bl Com. 147 ; 1 Hawk. c. 65, s. 6.

u. 55), s. 8 (2). The Act of 1887 applies (q) 1 Hawk. c. 65, ss. 5, 6. In R. v.

primarily to execution of civil process. Soley, 11 Mod. 100, Holt, O.J., said : ' If I

The sheriff is now little concerned with the am writing a letter and three or more come

execution of criminal process. Use of need- hallooing and jogging me, is this a riot ? '

less outrage or violence by officers of the No, it ought to be in terrorem populi.

law is punishable. See 1 Hawk. c. 65, o. 2 ; (r) Clifford v. Brandon, 2 Camp. 369.

19 Vin. Abr. tit. ' Riots, &c.' (A.) 4. Sir J. Mansfield, C.J.

CHA.P. I.] Riots, Routs, and Unlawful Assemblies. 411

force is used to terrify a single person, though no other persons are
near enough to be within reach of the alarm. Four persons went to a
cottage, in which was one old man ; one of them began to knock down
the end of the cottage with an axe, and knocked part of the woodwork
against the old man ; he then caught the old man by the collar, and
said, ' Come, you must go out of the house,' and he did go out, and the
prisoners pulled the house to the ground, except the chimney ; the jury
were told that if such force was used by the four prisoners as to terrify
the old man, they might find that there was a riot, and this direction
was held right (s).

From the absence of terror populi, assemblies at wakes, or other
festival times, or meetings for the exercise of common sports or diversions,
as wrestling, and such like, are not riotous (t). Three persons or more
may assemble together with an intention to execute a wrongful act,
and also actually to perform their intended enterprise,, without being
rioters. Thus, if a man assembles a number of persons to carry away
a piece of timber or other thing to which he claims a right, and which
cannot be carried away without a number of persons, this will not of
itself be a riot if the number of persons are not more than are •
necessary for the purpose, and if there are no threatening words
used, nor any other disturbance of the peace ; even though another
man has better right to the thing carried away, and the act is therefore
wrong and unlawful (m). Where on an indictment for riot it appeared
that two men were fighting amidst a great crowd, and .that some persons
were aiding and assisting ; but on some peace officers appearing the
fight ceased, and the fighters quietly yielded to the officers : Alderson,
B., held that this was not a riot (v). And of course any person may, in
a peaceable manner, assemble a fit number of persons to do any lawful
thing ; as to remove a public nuisance, or a nuisance to his own house
or land. And he may do this before any prejudice is received from the
nuisance, and may also enter into another man's ground for the purpose.
Thus, where a man having erected a weir across a public navigable
river, divers persons assembled with spades and other instruments
necessary for removing it, and dug a trench in the land of the man who
made the weir in order to turn the water and the better to remove the weir,
and thus removed the nuisance, it was held not to be a forcible entry
nor a riot (w).

(s) R. U.Phillips, 2 Mood. 252; s.c.as R. v. ball in the said town. In Sir Antony Ash-

Langford, C. & M. 602 : followed in Field ley's case, 1 RoUeRep. 109, Coke, C. J., said

)■. Receiver of Metrop. Police [1907], 2 K.B. that stage-players might be indicted for a

853. riot and unlawful assembly. And see Dalt.

(t) 1 Hawk. c. 65, s. 5. Bull baiting. Just. c. 136 (citing Roll. R.), that if such

referred to in prior editions, has been illegal players by their shows occasion an estra-

since'1849(12&13Vict. c. 92,s. 3). In 2 Chit. ordinary and unusual concourse of people

Cr. L. 494, will be found an indictment said to see them act their tricks, this is an un

to have been drawn in the year 1797, by a lawful assembly and riot, for which they

very eminent pleader, for the purpose of may be indicted and fined. 19 Vin. Abr.

suppressing an ancient custom of kicking tit. ' Riots, &c.' (A.) 8.
about foot-balls on Shrove Tuesday, at {u) 1 Hawk. c. 65, s. 5. R. v. Soley, 11

Kingston-upon-Thames. The first count Mod. 117 ; Dalt. c. 137 ; Burn's Just. tit.

is for riotously kicking about a foot-ball in ' Riot,' s. 1.
the town of Kingston ; and the second, for (v) R. v. Hunt, 1 Cox, 177.

a common nuisance in kicking about a foot- {w) Dalt. c. 137 : Buni, tit. ' Riot,' s. 1.

412 Of Disturbances of the Public Peace. [book vi.

If there be violence and tumult, it makes no difference whether
the act intended to be done by the persons assembled is lawful or unlawful.
Thus, if three or more persons assist a man to make a forcible entry
into lands to which one of them has a good right of entry ; or if the like
number, in a violent and tumultuous manner, join together in removing
a nuisance or other thing, which may be lawfully done in a peaceable
manner, they are as much rioters as if the act intended to be done
by them were absolutely unlawful {x). And if in removing a nuisance
the persons assembled use threats (such as, they will do it though they
die for it, or the like), or in any other way behave in actual disturbance
of the peace, it seems to be a riot {y). If a large body of men assemble
themselves together for the purpose of obtaining any particular end,
and conduct themselves in a turbulent manner, either accompanied
with acts of violence, or with threats and intimidation calculated to
excite the terror and alarm of the King's subjects, this is in itself a riot,
whether the end and object proposed be a just and legitimate one or
not (z).

The violence and tumult must in some degree be premeditated. If
a number of persons, being met together at a fair, market, or any other
lawful or innocent occasion, happen on a sudden quarrel to fall together
by the ears, they are not guilty of riot, but only of a sudden affray (a),
of which none are guilty but those who actually engage in it ; because
the design of their meeting was innocent and lawful, and the subsequent
breach of the peace happened unexpectedly, without any previous
intention [h). But although the audience in a public theatre have a
right to express the feelings excited by the performance, and to applaud
or to hiss any piece which is represented, or any performer who exhibits
himself on the stage ; yet if a number of persons, having come to the
theatre with a predetermined purpose of interrupting the performance,
for this purpose make a great noise and disturbance, so as to render the
actors entirely inaudible, though without offering personal violence to
any individual, or doing any injury to the house, they are guilty of
riot (c).

Even though the parties may have assembled in the first instance
for an innocent purpose, yet if they afterwards, upon a dispute arising
amongst them, form themselves into parties, with promises of mutual
assistance, and then make an affray, it is said that they are guilty of a
riot, because upon their confederating together with an intention to
break the peace, they may as properly be said to be assembled together
for that purpose from the time of such confederacy, as if their first coming
had been on such a design ; and if in an assembly of persons met together
on any lawful occasion whatsoever, a sudden proposal is started of going
together in a body to pull down a house, or inclosure, or to do any other
act of violence, to the disturbance of the public peace, and such motion

(x) 1 Hawk. c. 65, s. 7. Anon., 12 Mod. (6) 1 Hawk. o. 65, s. 3.

648. R. V. Hughes, M. & M. 178, note (a). (c) Clifford v. Brandon, 2 Camp. 358.

(y) Dalt. 0. 137 ; Burn's Just. tit. ' Riot,' See Gregory v. Duke of Brunswick, 6 M. &

. 1. G. 953 ; 3 0. B. 481 ; 1 C. & K. 24. R. v.

(z) Tindal, C.J., in charging the grand Leigh, Ann. Reg. for 1775, p. 117, ante,

jury at Stafford [1842], 0. & M. 661. p. 171.

(a) Boat, p. 427.

CHAP. L] Riots, Routs, mid Unlawful Assemblies. 413

is agreed to, and executed accordingly, the persons concerned are guilty
of riot ; because their associating themselves together, for the new
purpose, is in no way extenuated by their having met at first upon
another (d).

If any person seeing others actually engaged in a riot, joins them
and assists them therein, he is as much a rioter as if he had at first
assembled with them for the same purpose, inasmuch as he has no pretence
that he came innocently into the company, but joined himself to them
with an intention of seconding them in the execution of their unlawful
enterprise. And it would be endless, as well as sitperfluous, to examine
whether every particular person engaged in a riot were in truth one of
the first assembly, or actually had a previous knowledge of the design (e).
And if any person encourages, or promotes, or takes part in riots, whether
by words, signs, or gestures, or by wearing the badge or ensign of the
rioters, he becomes a rioter ; for in this case all are principals (/). But
mere presence without encouragement is not enough to establish crimin-
ality (g). If three or more, being lawfully assembled, quarrel, and the
party fall on one of their own company, this is no riot ; but if it be on a
stranger, the very moment the quarrel begins, they begin to be an unlawful
assembly, and their concurrence is evidence of an evil intention in those
who concur, so that it is a riot in them that act, and in no more (h).
Inciting persons to assemble in a riotous manner seems to be an indictable
offence (i), and if the riot ensues in consequence of incitement by speeches
at a meeting, the inciter is liable as a principal, although absent from
the scene of the actual riot {ii).

The law recognises no right of public meeting in thoroughfares,
which are dedicated only for public passage and repassage (/). A place
of public resort is analogous to a public thoroughfare, and although
public meetings may often have been held in a place of public resort,
without interruption by those who have the control of such place, yet
there is not in law any right of public meeting there for the purpose of
discussing any question, whether social, pohtical, or religious.

A magistrate, being responsible for order in the district over which
he has control, and the Commissioner of the Police for the Metropolis
being the officer mainly responsible for the preservation of peace and
order in the metropolis (k), is fully justified in issuing a public notice to the
effect that pubhc meetings will not be permitted to take place in any
place of pubhc resort under his control, when he has reasonable grounds for
believing that a breach of the public peace is likely to result from holding

{d) 1 Hawk. c. 65, s. 3. See R. v. Burns, ed.) 420, the first count is for inciting per-

16 Cox, 355, ante, p. 302. sons to assemble, and that in consequence

( / ) Chfford V. Brandon, 2 Camp. 370, second count states the inciting, and omits

Mansfield, C.J. And see R. v. Royce, 4 the assembling in consequence of it. See a

Burr. 2073, and the second and third reso- similar precedent, 2 Chit. Cr. L. 506.

lution in the Sissinghurst house case, 1 {ii) R. v. Sharpe, 3 Cox, 288, Wilde, C.J.

Hale, 463. (?) Harrison v. Duke of Rutland [1893],

ig) R. V. Atkinson, 11 Cox, 330. 1 Q.B. 142.

{h) 19 Vin. Abr. tit. ' Riots, &c.' (A.) 15. (k) As to puni.shment for neglect of this

R. V. Ellis, 2 Salk. 595. duty, see R. v. Pinney, 3 St. Tr. (N. S.) 11,

(i) See the principles stated ante, p. 203. and post, p. 434.
Tn an indictment in Cro. Circ. Comp. (8th

414 Of Disturhances of the Public Peace. LBook vi.

public meetings in such places. A public meeting held at a place of
public resort after the publication of such a notice is not, however,
rendered an unlawful assembly merely by reason of such pubKcation (l).

Where the defendants resisted the police by endeavouring to break
through their ranks in order to take part in a public meeting in Trafalgar
Square, a place of public resort within the metropolis, which meeting
had been prohibited by the Commissioner of Police for the Metropolis,
and the holding of which the police had received orders to prevent, it was
held that, by the operation of 2 & 3 Vict. c. 47, 7 & 8 Vict. c. 60, and
14 & 15 Vict. c. 42, Trafalgar Square is placed under the control and
supervision of the police in the same manner as any street, thoroughfare,
or public place, and that whether the defendants were guilty of partici-
pating in a riotous assembly depended upon whether they, with others
who were following them, or who, as they expected, would follow them,
approached the square with the intention of holding a meeting, come what
might, or merely approached it with the intention of requesting to be
allowed to hold a meeting, and of departing if their request was refused.

It was also held, that if the jury were satisfied that the defendants
headed a mob with the intention of getting to a place of public resort
if they could, and by doing so endangered the public peace and alarmed
reasonable people, they would be justified in finding them guilty of
riot (m).

B. Statutes as to Riots.

Besides the early statutes for the suppression of riots referred to
post, p. 431, the following statutory provisions are in force as to riots :

(i.) The Riot Act.— The Riot Act (1714, 1 Geo. I. st. 2, c. 5), after
reciting that many rebellious riots and tumults had been in divers parts
of the kingdom, to the disturbance of the public peace and the endanger-
ing of His Majesty's person and government (n), and that the punishments
provided by the laws then in being were not adequate to such heinous
offences ; for the preventing and suppressing such riots and tumults,
and for the more speedy and effectual punishing the offenders, enacts
(sect. 1), ' that if any persons to the number of twelve or more, being
unlawfully, riotously, and tumultuously assembled together, to the dis-
turbance of the public peace, and being required or commanded by any
one or more justice or justices of the peace, or by the sheriff of the county,
or his under-sheriff, or by the mayor, bailiff or bailiffs, or other head
officer, or justice of the peace of any city or town corporate, where such
assembly shall be, by proclamation to be made in the King's name, in
the form hereinafter directed, to disperse themselves, and peaceably to
depart to their habitations or to their lawful business, shall, to the number
of twelve or more (notwithstanding such proclamation made), unlawfully,
riotously, and tumultuously remain or continue together by the space
of one hour after such command or request made by proclamation,

{I) R. V. Fursey, 3 St. Tr. (N. S.) 643; illegal.
6 C. & P. 81 ; where a notice by a Secretary (m) R. v. Cuuninghame Graham, 16 Cox,

of State, describing an intended public 420, Charles, J. As to Trafalgar Square,

meeting as dangerous to the public peace and see Ex parte Lewis, 21 Q.B.D. 191.
illegal, was held not to make the meeting (n) The Act was aimed at the Jacobites,

illegal, nor to be any evidence that it was

CHAP. I.] Riots, Routs, and Unlawful Assemblies. 415

and then such continuing together to the number of twelve or more, after
such command or request made by proclamation, shall be adjudged
felony . . .' (o).

Sect. 2. 'And ... the order and form of the proclamation that
shall be made by the authority of this Act shall be as hereafter foUoweth
(that is to say) : The justice of the peace, or other person authorised by
the Act to make the proclamation, shall, among the said rioters, or as
near to them as he can safely come, with a loud voice command, or
cause to be commanded, silence to be while proclamation is making, and
after that shall openly and with loud voice make, or cause to be made,
proclamation in these words, or like in effect :

' " Our sovereign lord the King chargeth and commandeth all persons
being assembled, immediately to disperse themselves, and peaceably to
depart to their habitations, or to their lawful business, upon the pains
contained in the Act made in the first year of King George, for pre-
venting tumults and riotous assemblies.

' " God save the King."

' And every such justice, and justices of the peace, sheriff, mayor,
bailiff, and other head officer aforesaid, within the limits of their respec-
tive jurisdictions, are hereby authorised and required, on notice or
knowledge of any such unlawful, riotous, and tumultuous assembly, to
resort to the place where such unlawful, riotous, and tumultuous
assembly shall be of persons to the number of twelve or more, and
there to make or cause to be made proclamation in manner aforesaid.'

Sect. 3. . . . ' If such persons so unlawfully, riotously, and tumultu-
ously assembled, or twelve or more of them, after proclamation made in
manner aforesaid shall continue together, and not disperse themselves
within one hour, it shall be lawful to and for every justice of the peace,
sheriff, or under-sheriff of the county where such assembly shall be, and
for every high or petty constable or other peace-officer within such
county, and also to and for every mayor, justice of the peace, sheriff,
bailiff, and other head officer, high or petty constable, and other peace-
officer of any city or town corporate where such assembly shall be,
and to and for such other persons as shall be commanded to be assisting
under any such justice of the peace, sheriff, or under-sheriff, mayor, bailiff,
or other head officer (who are hereby authorised to command all His
Majesty's subjects of age and ability to be assisting to them therein)
to seize and apprehend, and they are hereby required to seize and appre-
hend, such persons so unlawfully, riotously, and tumultuously continu-
ing together after proclamation made as aforesaid ; and forthwith to
carry the persons so apprehended before one or more of His Majesty's
justices of the peace of the county or place where such persons shall be so
apprehended, in order to their being proceeded against according to
law.' The section also enacts, that if any of the persons so assembled
shall happen to be killed, maimed, or hurt, in the dispersing, seizing,

(o) The rest of the section was repealed in punishment when the circumstances speci-

1888 (S. L. R.). As to present punishment, fied in the statute are superadded. See

see posi, p. 416, note (d). This section does R. v. Fursey, 6 C. & P. 81. Featherstone

not affect the common-law offence of riot. Riots Report, Pari. Pap. 1893, c. 7324.
but merely aggravates its quality and

416 Of Disturbances of the Public Peace. [book vi.

or apprehending them, or in the endeavour to do so, by reason of their
resisting, then every such justice, &c., constable, or other peace-officer,
and all persons being aiding and assisting to them, shall be free, discharged,
and indemnified concerning such killing, maiming, or hurting (p).

Sect. 5. ' Provided always . . . that if any person or persons do,
or shall, with force and arms, wilfully and knowingly oppose, obstruct, or
in any manner wilfully and knowingly let, hinder, or hurt, any person or
persons that shall begin to proclaim, or go to proclaim, according to the
proclamation hereby directed to be made, whereby such proclamation
shall not be made, that then every such opposing, obstructing, letting,
hindering, or hurting, such person or persons, so beginning or going to make
such proclamation as aforesaid, shall be adjudged felony . . . {q);
and that also every such person or persons being so unlawfully, riotously,
and tumultuously assembled, to the number of twelve, as aforesaid, or
more, to whom proclamation should or ought to have been made, if
the same had not been hindered, as aforesaid, shall likewise, in case
they or any of them, to the number of twelve or more, shall continue
together, and not disperse themselves within one hour after such let
or hindrance so made, having knowledge of such let or hindrance so
made, shall be adjudged felons . . .' (r).

Sect. 8. ' Provided always, that no person or persons shall be prose-
cuted by virtue of this Act for any offence or offences committed,
contrary to the same, unless such prosecution be commenced (s) within
twelve months (t) after the ofEence committed ' (u).

7 Will. IV. & 1 Vict. c. 91, recites sects. 1 & 5 of the Eiot Act, and
provides (sect. 1) that . . . any person convicted of any of the said
offences shall not suffer death, but be liable to transportation [v)
for life . . . (w).

The Riot Act contains no provisions as to principals in the second
degree, or accessories ; there may, however, be such principals and
accessories (x). Principals in the second degree and accessories before
the fact are punishable as principals in the first degree (y) ; and acces-
sories after the fact are punishable with imprisonment for not exceeding
two years, with or without hard labour {z).

If the magistrate omits the words ' God save the King,' the proclamation

(p) S. 4, punishing rioters who unlawfully (t) Strictly speaking, this means lunar

and with force pull down a church, chapel, or mouths, vide ante, p. 3.

a place for religious worship tolerated by (u) Ss. 9, 10 relate to Scotland,

law (s. 10), was repealed as to England in (v) The present punishment is penal

1827 (7 & 8 Geo. IV. c. 27, s. 1), and as to servitude for life or not less than three

India in 1828 (9 Geo. IV. u. 74, a. 125). years, or imprisonment with or without

See the present enactments on the subject, hard labour for not more than two years.

post, p. 418. 20 & 21 Vict. c. 3, s. 2 ; 54 & 55 Vict. c. 69,

(q) Words omitted repealed in 1888 s. 1, ante, pp. 211, 212.

(S. L. R.). For present punishment, see (w) The section made further provisions

note (v) infra. for the minimum term of transportation

(r) The words omitted here were re- and for imprisonment, which were super-
pealed in 1888 (S. L. R.). As to present seded by s. 1 of the P. S. Act, 1891, and
punishment, see note (v) infra. S. 6 was were repealed in 1892 (S. L. R.).
repealed as to England in 1827 (7 & 8 {x) See ante, p. 106, ' Accessories, &c.'
Geo. IV. c. 28, s. 1) ; S. 7 requires that (y) R. v. Royce, 4 Burr. 2073. 24 & 25
the Act be openly read at every quarter Vict. c. 94, s. 1, ante, p. 130.
sessions and at every leet or law day. (z) 24 & 25 Viet. c. 94, s. 4, ante, p. 131.

(s) i.e., by arrest, or by information laid.

CHAP. I.] Riots, Routs, and Unlawful Assemblies. 417

is insufficient (a). Where an indictment upon sect. 1, in setting out
the proclamation, omits the words ' of the reign of,' which were con-
tained in the proclamation read, this was held a fatal variance (b). But
it is submitted that the proclamation may now simply refer to the Act
by its short title, ' The Riot Act ' (c). The hour is computed from the
first reading of the proclamation. Where, therefore, a magistrate read
the proclamation a second and third time before an hour had elapsed
from the time of his reading it the fijst time, and it was objected that
the second and third readings must be considered as new warnings, and
as if the former readings were abandoned, it was held that the second,
or any subsequent reading of the proclamation, did not at all do away
with the effect of the first reading, and that the hour was to be com-
puted from the time of the first reading of the proclamation (b).

If there be such an assembly that there would have been a riot, if the
parties had carried their purpose into effect, it is within the Act (6).

Upon an indictment under sect. 1, it was not proved that the prisoner
was among the mob during the whole of the hour, but he was proved
to have been there at various times during the hour. It was held that
it was a question for the jury, upon aU the circumstances, whether he
did substantially continue making part of the assembly for the hour ;
for although he might have occasion to separate himself for a minute
or two, yet if in substance he was there during the hour he would not
be thereby excused (d).

A riot is not the less a riot, nor an illegal meeting the less an illegal
meeting, because the Riot Act has not been read, the effect of the read-
ing beiag to make the parties guilty of a statutory offence if they do
not disperse within an hour ; but if the proclamation be not read, the
common law offence remains (e).

(ii) Riots to prevent Loading or Unloading of Ships. — The Shipping
Offences Act, 1793 (33 Geo. III. c. 67), s. 1, recites that seamen, keelmen,
&c., had of late assembled themselves in great numbers, and had com-
mitted many acts of violence ; and that such practices, if continued,
might occasion great loss and damage to individuals, and injure the trade
and navigation of the kingdom, and enacts (sect. 1), that ' if any seamen,
keelmen, casters, ship-carpenters, or other persons, riotously assembled
together to the number of three or more . . . shall unlawfully and with
force prevent, hinder, or obstruct the loading or unloading, or the sailing
or navigating, of any ship, keel, or other vessel, or shall unlawfully and
with force board any ship, keel, or other vessel, with intent to prevent,
hinder, or obstruct, the loading or unloading or the sailing or navigating
of such ship, keel, or other vessel, every seaman, keehnan, caster, ship-
carpenter, and other person being lawfully convicted of any of the
offences aforesaid upon any indictment to be found against him, her,
or them in any Court of Oyer and Terminer, or general or quarter
sessions of the peace' for the county, &c., wherein the offence was

(a) R. V. Child, 4 C. & P. 442, Vaughan, Vict. c. 14, sched. 1.
B., and Alderson, J. {d} R. v. James, Gloucester Summer

(6) R. V. Woolcock, 5 C. & P. 516, Patte- Assizes, 1831, Patteson, J. MS. C. S. G.
son, J. (e) R. t. Fursey, 6 C. & P. 81, Gaselee

VOL. I. 2 E

418 Of Disturbances of the Public Peace. [book vi.

committed, shall be committed either to the common gaol and remain
without bail or mainprize ... for the same county, &c., ' there to
continue and to be kept to hard labour for any term not exceeding twelve
calendar months, nor less than six calendar months' (/). By sect. 3
' If any seaman, caster, ship-carpenter, or other person shall be con-
victed of any of the offences aforesaid, in pursuance of this Act, and shall
afterwards offend again in like manner, every such seaman, &c., so
offending again in like manner, and being lawfully convicted thereof . . .
shall be adjudged guilty of felony, and shall be transported to some of
His Majesty's dominions beyond the seas for any. space of time or
term of years not exceeding fourteen years, nor less than seven years ' {g).
By sect. 4, the Act does not extend to any act, deed, &c., done in the
service, or by the authority of His Majesty (A). By sect. 7, offences
committed on the high seas are triable in any session of Oyer and
Terminer, &c., for the trial of offences committed on the high seas
within the jurisdiction of the Admiralty of England {i). . And by sect. 8,
The prosecution for any of the said offences is to be commenced within
twelve calendar months after the offence committed {j).

(iii) Damage by Rioters.- — By the MaUcious Damage Act, 1861
(24 & 25 Vict. c. 97), s. 11 [h), ' If any persons riotously and tumultuously
assembled together to the disturbance of the public peace shall unlaw-
fully and with force demolish, or pull down or destroy, or begin to
demolish, pull down, or destroy, any church, chapel, meeting-house, or
other place of divine worship, or any house, stable, coach-house, out-
house, warehouse, office, shop, mill, malt-house, hop-oast, barn, granary,
shed, hovel, or fold, or any building or erection used in farming land, or
in carrjdng on any trade or manufacture, or any branch thereof, or any
building other than such as are in this section before mentioned, belonging
to the King, or to any county, riding, division, city, borough, poor-law
union, parish, or place, or belonging to any university, or college or hall
of any university, or to any inn .of court, or devoted or dedicated to public
use or ornament, or erected or maintained by public subscription or contribu-
tion, or any machinery, whether fixed or moveable, prepared for or
employed in any manufacture or in any branch thereof, or any steam-
engine or other engine for sinking, working, ventilating, or draining any
mine, or any staith, building, or erection used in conducting the business
of any mine, or any bridge, waggon-way, or trunk for conveying minerals
from any mine, every such offender shall be guilty of felony, and being
convicted thereof shall be liable, ... to be kept in penal servitude for
life . . . (I).

(/) S. 2 waa repealed as to England h. 125).

and India in 1828 (9 Geo. IV. c. 31, s. 1 ; (i) Vide 39 Geo. III. c. 37, s. 1, ante,

0. 74, s. 125). As to unlawful and forcible p. 37.

interference with seamen, &c., see 24 & 25 {j) The Act was originally temporary,

Vict. c. 100, s. 40. but was made perpetual in 1801 (41 Geo.

{g) The present punishment is penal ser- III. o. 19).

vitude from three to fourteen years, or (k) Taken from 7 & 8 Geo. IV. c. 30, s. 8

imprisonment with or without hard labour (E). There were similar enactments in 23

for not more than two years. 20 & 21 & 24 Geo. III. o. 20, ss 7 8 (I) and 27

Vict. u. 3, s. 2 ; 54 & 55 Vict. c. 69, s. 1, Geo. III. c. 15, o. 5 (I).

ante, pp. 211, 212. (I) For minimum term of penal servi-

(h) Ss. 5, 6 were repealed as to Eng- tude and term of imprisonment, see 54 &

land m 1827 (7 & 8 Geo. IV. c. 27, s. 1) 55 Viet. o. 69, s. 1, ante, pp. 211, 219. The

and as to India in 1828 (9 Geo. IV. c. 74, words omitted are repealed.

CHAP. I.] Riots, Routs, and Unlawful Assemblies. 419

By virtue of the proviso to sect. 12 infra, the jury may, on an indict-
ment under sect. 11, find the accused guilty of an offence under sect. 12 :
or they may, under 14 & 1-5 Vict. c. 100, s. 9, find him guilty of common-
law riot (m).

By sect. 12, ' If any persons, riotously and tumultuously assembled
together to the disturbance of the public peace, shall unlawfully and
with force injure or damage any such church, chapel, meeting-house,
place of divine worship, house, stable, coach-house, out-house, warehouse,
office, shop, mill, malt-house, hop-oast, barn, granary, shed, hovel, fold,
building, erection, machinery, engine, staith, bridge, waggon-way, or
trunk, as is in the last preceding section mentioned, every such offender
shall be guilty of a misdemeanor, and being convicted thereof shall be
liable ... to be kept in penal servitude for any term not exceeding
seven years . . . (n).

Provided that if upon the trial of any person for any felony in the
last preceding section mentioned the jury shall not be satisfied that such
person is guilty thereof, but shall be satisfied that he is guilty of any
offence in this section mentioned, then the jury may find him guilty
thereof, and he may be punished accordingly ' (o) .

The following decisions on 7 & 8 Geo. IV. c. 30, s. 8 (rep.), are still of
value in the interpretation of sects. 11 and 12 of the Act of 1861. In the
absence of a definition of riot in sect. 8, the common-law definition of a
riot was resorted to, and where any one of His Majesty's subjects was
terrified this it was held was a sufficient terror and alarm to substantiate
that part of the charge (p).

If persons riotously assembled and demolished a house, really believiruf
that it was the property of one of them, and acted bond fide in the asser-
tion of a supposed right, this was not a felonious demolition of the house
within sect. 8, even though there were a riot (q). It is not necessary
that the rioters should have any ill-will against the person whose property
is destroyed, &c., demolished (r).

If rioters, after proceeding a certain length, leave off of their own
accord before the act of demolition be completed, a jury may infer that
they did not intend to demolish the house. A party of rioters came to
a house about midnight, and in a riotous manner burst open the door,
broke some of the furniture, all the windows, and one of the window-
frames, and then went away, there being nothing to hinder them from
doing more damage ; it was held that, although the breaking and damage
done was a sufficient beginning to demolish the house, yet unless the jury
were satisfied that the ultimate object was to destroy the house, and
that if they had carried their intentions into full effect, they would, in

(m) See Casey v. R., Ir. Bep. 8 C. L. 408 cases where no such intention ever existed,

(0. C. R.). provided there be a riot, and injury done,

(») The words omitted are repealed. For within the terms of tha Eeotion.

minimum term of penal servitude and term (p) R. v. PhilUps, 2 Mood. 252 ; S. 0. as R.

of imprisonment, see 54 & 55 Vict. u. 69, v. Langford, C. & M. 602, approved iii Field

8. 1, ante, pp. 211,212. v. Receiver of Metropolitan PoKce [1907],

(o) This section, which was new in 1861, 1 K.B. 853, 860.
is intended to provide for cases where there (?) R. v. Howell, 9 C. & P. 437, Little-
is not sufficient evidence of an intention to dale, J.

proceed to the total demolition of the (r) Bristol Special Commission, 3 St. Tr.

house, &c. {vide infra), and also for (N. S.) 1, Tindal, CJ.

2 E 2

420 Of Disturbances of the Puhlic Peace. [book vi.

point of fact, have demolished it, it was not a beginning to demolish within
sect. 8 (s).

The fact that the rioters' main object was to injure a person did not
take a case out of sect. 8 if they also meant to demolish his house.

A party of coal-whippers having a feeling of Ul-will to a coal-lumper,
who paid less than the usual wages, created a mob, riotously went to
the house where his pay-table was, cried out that they would murder
him, threw stones, brick-bats, &c., broke windows and partitions, and
threw down part of a wall in a yard, and continued, after his escape,
throwing stones at the house, till they were compelled to desist by the
threats'of the police ; it was held that this case was distinguishable from R.
V. Thomas (s), because the mob did not leave off voluntarily, but after
the threats of the police, and that they might be convicted of beginning
to demolish the house, though their principal object was to injure the
lumper, provided it was also their object to demolish the house (t).

Where on an indictment for ' beginning ' to demolish a building used
for trade, it appeared that the prisoners began by breaking the windows
and doors, and having afterwards entered the house, they set fire to the
furniture, but that no part of the house was burnt. Parke, J., told the
jury ' beginning to pull down means not simply a demolition of a part,
but a part with an intent to demolish the whole. It is for you to say if
the prisoners meant to stop where they did, and do no more ; because if
they did, they are not guilty ; but if they intended, when they broke the
windows and doors, to go farther, and destroy the house, then they are
guilty of a capital offence. If they had the full means of going farther,
and were not interrupted, but left ofi of their own accord, it is evidence
from which you may judge that they meant the work of demolition to
stop where it did. If you think that they originally came there without
intent to demolish, and the setting fire to the furniture was an afterthought
but with that intent, then you must acquit, because no part of the house
having been burnt, there was no beginning to destroy the house. If
they came originally without such intent, but had afterwards set fire to
the house, then the ofience would be arson. If you have doubts whether
they originally came with a purpose to demolish, you may use the setting
fire to the furniture under such circumstances, and in such manner, as
that the necessary consequence, if not for timely interference, would
would have been the burning of the house, as evidence to shew that they
had such intent, although they began to demolish in another manner ' (m).
Upon an indictment under sect. 8, the jury could not convict unless they
were satisfied that the prisoners intended to leave the house no house
at all in fact ; for if they intended to leave it still a house, though in a
state however dilapidated, they were not guilty of the offence. To have
left off the work of devastation without interruption would lead to the
inference that the prisoners did not intend to destroy the house ; but
even if they were interrupted, the question still remained, what was
their ultimate intention ? If they had been some time at their work of

(s) R. V. Thomas, MS. C. S. G., and 4 outrage only intended to get possession of

C. & P. 237, Littledale, J. See also R. v. a, person who had entered the house.

Howell, 9 0. & P. 437. R. v. Price, 5 C. & (t) R. v. Batt, 6 C. & P. 329, Gumey, B.

P. 510, where the jiersons committing the {u) R. v. Ashton, 1 Lew. 296, Parke, J

CHAP, t] Riots, Bonis, and Untawful Assemblies. 421

ruin before they were interrupted, it was for the jury to say, looking
to the nature of the things which they had destroyed, whether their pur-
pose was to demolish the house itself {v).

Although setting fire to a house is a substantive felony, yet if fire is
made the means of attempting to destroy a house, it is as much a beginning
to demolish as if any other mode of destruction were resorted to, and
the indictment may be for that offence (w).

If a person forms part of a riotous assembly at the time the act of
demolition commences, or if he wilfully joins such riotous assembly,
so as to co-operate with them whilst the act of demolition is going on,
and before it is completed, in either case he comes within the descrip-
tion of the offence, although he may not have assisted with his own
hand in the demolition of the building {x). On an indictment under
7 & 8 Geo. IV. c. 30, s. 8 (rep.), it appeared that a house was demolished
by rioters by means of fire, which was lighted before one o'clock in the
night, and there was no evidence to shew that the prisoner was present
at the time when the house was set on fire, but it was proved that he was
there between two and three o'clock whilst the house was burning, and
whilst the mob, who set it on fire, were still there ; it was held that the
prisoner was properly convicted as a principal. For although it was
possible, if this had been an indictment for burning the house, that the
prisoner could not have been convicted as a principal, yet this was an
offence under an enactment that made it felony if persons riotously and
tumultuously assembled together to the disturbance of the public peace,
and when so assembled destroyed a house ; therefore it was not simply
the fact of destroying a house by fire, but it was the combined fact of
riotously assembling together and whilst the riot continued demolishing
the house. To make a party guilty of that, he must be shewn to be one
of those who were present at the offence, or he could not be aiding or abet-
ting. But as it was not only the burning, but also the riotously assembling
together, the whole of the prisoner's conduct on that day was left to the
jury ; and it was distinctly left to them that unless they were satisfied
that the prisoner had by his language excited the mob to the act which
was the subject-matter of the inquiry, and afterwards been present at it,
he was not guilty {y).

Under 7 & 8 Geo. IV. c. 30, s. 8 (rep.), it was a sufficient demolishing
of the house by rioters if it were so far destroyed as to be no longer a
house ; and the fact that the rioters left the chimney standing made no
difference {z).

In order to prove that there was a beginning to demolish the house,
it must be proved that some part of the freehold was destroyed ; it
was not therefore sufficient to prove that the window shutters were
demolished {a).

There have been few direct rulings as to the offences created by

(v) R. V. Adams, C. & M. 299, Coleridge, J. 265n.

\w) R. V. Simpson, C. & M. 669. R. v. (y) R. v. Simpson, C. & M. 669, Tindal,

Harris, C. & M. 661, Tindal, C.J., Parke, C.J., Parke, B., and Rolfe, B.

and Rolfe, BB. (z) R. v. Phillips, 2 Mood. 252 ; S. C. as R.

(x) Per Tindal, C.J., Bristol Special v. Langford, C. & M. 602.

Commission, 3 St. Tr. (N. S. ) 1 , 7 ; 5 C. & P. (a) Ibid.

422 Of Disturbances of the Public Peace. [book vi.

sects. 11 and 12 of the Act of 1861, but it would seem to be clear
that malicious injury to property done by three or more is not in itself a
riot (&) : that to constitute an offence within the sections there must
be also a riot in the common-law sense of the term (c). It has been held
that demolition of boundary-wall of an empty house by a gang of rough
youths was not a demolition by persons riotously and tumultuously
assembled so as to warrant a claim for compensation under the Eiot
Damages Act, 1886 (d), there being no evidence of any intention of mem-
bers of the gang to help each other, if need arose, in the execution of
their common purpose nor of any force or violence (other than that used
in demolishing the wall) displayed in such a manner as to alarm any
person of reasonable firmness and courage (e) ; and to constitute an
ofienoe against sect. 11 there must be an intent totally to demolish the
house, &c. (/).

Sect. II. — Eouts.

In some books the notion of a rout is limited to assemblies occasioned
by some grievance common to all the company : as the inclosure of land
in which they all claim a right of common, &c. But, according to the
general opinion, it seems to be a disturbance of the peace by three or
more persons assembling together with an intention to do a thing, which,
if executed, will make them rioters, and actually making a motion to
execute their purpose. In fact, it agrees in all particiilars with a riot
except that it may be complete without the execution of the intended
enterprise (gr). And it seems, by the recitals in several early statutes,
that if people assemble themselves, and afterwards proceed, ride, go
forth, or move by instigation of one or several conducting them, this
is a rout ; inasmuch as they move and proceed in rout and number Qi).

It is usual to insert in indictments for riot the word ' routously ' ; and
if a riot is not proved, the jury may in such indictment convict of rout.
The offence is an indictable misdemeanor, punishable by fine (or) im-
prisonment without hard labour, or both {gg). Indictments for rout
alone are rarely, if ever, preferred.

Sect. III. — Unlawful Assembly and Association.

A. Common Law.

An unlawful assembly, according to the common opinion, is a dis-
turbance of the peace by persons assembling together with an intention
to do a thing which, if it were executed, would make them rioters, but
neither actually executing it nor making a motion towards its execution.
Hawkins, however, thinks this opinion much too narrow ; and that any
meeting of great numbers of people with such circumstances of terror as

(h) Field v. Receiver of Metrop. Police (g) Redford v. Birley, 1 St. Tr. (N. S.'

[1907], 2 K.B. 853, 859, rejecting Coke's 1211, 1214, Holroyd, J. 1 Hawk. o. 65.

deHnition of riot (3 Inst. 146). ss. 1, 8, 9. Cf. 3 Co. Inst. 176 ; 2 Chit.

(d) 49 & 50 Vict. c. 38. s. 2. {gg) Vide ante, p. 249.

uhi sup. referring to 13 Hen. IV. c. 7 ; 2 Hen. V.

(/) Drakes;. Foottit, 7 Q.B.D. 201. Cf. stat. c. 8, q.v. post, p. 432.
R. V. Howell, 9 C. & P. 437, ante, p. 419.

CHAP, t.] Riots, Routs, and Unlawful Assemblies. 423

cannot but endanger the public peace, and raise fears and jealousies
among the King's subjects, seems properly to be called an unlawful
assembly. As where great numbers complaining of a common griev-
ance meet together, armed in a warlike manner {%) in order to consult
together concerning the most proper means for the recovery of their
interests : for no one can foresee what may be the event of such an
assembly (/). In substance this means that an assembly is unlawful
if it may reasonably be found that it will endanger the public peace :
' if a mutiny from its general appearance and accompanying circum-
stances is calculated to excite terror, alarm, and consternation it is
generally criminal and unlawful ' (jfc). And ' any meeting assembled
under such circumstances as, according to the opinion of rational and firm
men are likely to produce danger to the tranquillity and peace of the
neighbourhood, is an unlawful assembly ' {I). In viewing this question,
the jury should take into consideration the way in which the meetings
were held, the hour at which they met, and the language used by the
persons assembled, and by those who addressed them : and then con-
sider whether firm and rational men, having their families and property
there, would have reasonable ground to fear a breach of the peace, as
the alarm must not be merely such as would frighten any foolish or
timid person, but niust be such as would alarm persons of reasonable
firmness and courage (m). All persons who join an assembly of this kind,
disregarding its probable effect and the alarm and consternation which
are likely to ensue, and all who give countenance and support to it, are
criminally responsible as parties to the assembly (w).

The difference between riot and unlawful assembly is this : if the
parties assemble in a tumultuous manner calculated to cause terror,
and actually execute their purpose with violence, it is a riot ; but if they
merely assemble upon a purpose which, if executed, would make them
rioters, but do not execute or make any motions to create such purpose and
having done nothing, separate without carrying their purpose into effect,
it is an unlawful assembly (o).

An assembly of a man's friends for the defence of his person against
those who threaten to beat him if he go to a market, &c., is unlawful ;
for he who is in fear of such insults must provide for his safety by swearing
the peace against the persons by whom he is threatened, and must not
make use of violent methods, which cannot but be attended with the
danger of raising tumults and disorders to the disturbance of the pubUc

(i) Or with sticks. See R. v. Vincent, Spring Assizes, 1820, cited by Alderson, B.

9 C. & P. 95, Alderson, B. 9 C. & P. 94n ; and per Holroyd, J., in

(j) 1 Hawk. u. 65, s. 9. There may be Bedford v. Birley [1822], 3 Stark. (N. P.)

an unlawful assembly if the people assemble 76; 1 St. Tr. (N. S.) 1217.

themselves together for an ill purpose con- (I) R. v. Vincent, 9 C. & P. 91 ; 3 St. Tr.

tra pacem, though they do nothing, Br. tit. (N. S.) 1037, Alderson, B. See R. v. Neale,

' Riots,' pi. 4. Coke speaks of an unlawful 9 C. & P. 431, Littledale, J.

assembly as being when three or more as- (m) Ibid.

semble themselves together to commit a (w) Per Holroyd, J., Redford v. Birley,

riot or rout, and do not do it. 3 Inst. 176. supra.

R. V. MoNaughten, 14 Cox, 576. See also (o) R. v. Birt, 5 C. & P. 154, Patteson,

R. u. Cunninghame Graham, 16 Cox, 420, J. Lord Thring (Manual of MiKtary Law)

Charles, J. describes unlawful assembly and not as

{k) Per Bayley, J., in R. v. Hunt, York di£Eerent stages on the way to insurrection.

424 Of Disturbances of the Public Peace. [booK VI.

peace (p). But an assembly of a man's friends in his own house, for
the defence of the possession of it against persons who threaten to make
an unlawful entry, or for the defence of his person against persons who
threaten to beat him in his house, is indulged by law ; for a man's house
is looked upon as his castle (q). It is said, however, that he may not arm
himself and assemble his friends in defence of his close (r).

An assembly of persons to witness a prize fight or bull fight, cock
fight, or badger baiting (s), is an unlawful assembly, and every one
present and countenancing the fight is guilty of an ofEence (t). Where
sixteen persons, with their faces blackened, and armed with guns and
sticks, met at a house at night, intending to go out for the purpose of
night poaching, it was held, that it was impossible that a meeting to go
out with their faces thus disguised, at night, and under such circum-
stances, could be other than an unlawful assembly (u).

An assembly in a public place for a lawful purpose, and with no inten-
tion of carrying out such purpose in an unlawful manner, is not rendered
tinlawful by the fact that those who compose it meet with the knowledge
that it is likely to be attacked or resisted by others (v).

A conspiracy between several persons to meet together for thepurpose of
disturbing the peace and tranquillity of the realm, of exciting disciontent
and disaffection, and of exciting the King's subjects to hatred of the govern-
ment and constitution is indictable, but independently of any question of
conspiracy, treason, or sedition, such assembly appears to be unlawful (w).

Unlawful assembly is an indictable misdemeanor punishable at
common law by fine and (or) imprisonment without hard labour.

B. Assemblies and Associations made Unlawful by Statute.

Tumultuous Petitioning. — 13 Car. II. st. 1., c. 5 (1662), after reciting
the mischiefs of tumultuous petitioning, enacts (sect. 1) that no person shall
' solicit, labour, or procure the getting of hands or other consent of any
persons above the number of twenty, to any petition, complaint,
remonstrance, declaration or other addresses to the King or both or
either houses of Parliament, for alteration of matters established by
law in church or state, unless the matter thereof shall have been
first consented unto and ordered ' by three or more justices, or by the

(p) Treason Act, 1351 (25 Edw. III. (s) 12 & 13 Viot. c. 92.

Stat. 2, 0. 2), in excepting from the defini- (<) R. v. Billingham, 2 C. &P. 234, Bur-

tion of treason the riding of any man armed rough, J. See R. v. Perkins, 4 C. & P. 537,

overtly or secretly with men of arms, to Patteson, J. R. v. Coney, 8 Q.B.D. 534.

slay, &c., declares that the offence shall be A sparring match, or an ordinary boxing

felony or trespass, according to the laws of match with gloves, does not seem to fall

the land of old time used, and according as within the definition of unlawful assembly,

the case requireth. See R. v. Young, 10 Cox, 371. R. u. Orton,

iq) 1 Hawk. c. 65, ss. 9, 10. 19 Vin. 14 Cox, 226 (C. C. R.).

Abr. tit. ' Riots, &o.' (A.) 5, 6. 3 Co. Inst. («) R. v. Brodribb, 6 C. & P. 571,

176. 4 Bl. Com. 146. Holt, C.J., in R. „. Holroyd, J.

Solcy, 11 Mod. 116, says that, though a {v) Beatty v. Gillbanks, 9 Q.B.D. 308.

man may ride, with arms, yet he cannot R. v. Clarkson, 17 Cox, 483 (C. C. R.).

take two with him to defend himself, even Both cases of meetings of the Salvation

though his life is threatened ; for he is in Army. But see Wise v. Dunning [1902],

the protection of the law, which is sufficient 1 K.B. 167, avte, p. 408.

for his defence. [w] R. v. Hunt, 3 B. & Aid. 566 ; 1 St.

(r) R. V. Bishop of Bangor, Shrewsbury Tr. (N. S.) 171. R. v. Vincent, 3 St. Tr.

Summer Assizes, 1790, 26 St. Tr. 523, (N. S.) 1037, vide ante, pp. 152, 423.
Heath, J.

©HAP. 1.] Riots, Routs, and Vntawful Assemblies. 4^6

major part of the grand jury of the county, &c., where the matter shall
arise, at the assizes or quarter sessions ; or, in London, by the lord
mayor, aldermen, and commons in common council : and that no person
shall ' repair to His Majesty or both or either houses of Parhament,
upon pretence of presenting or delivering any petition,' &c., '' accom-
panied with excessive number of people, nor at any one time with
above the number of ten persons, upon pain of incurring a penalty not
exceeding one hundred pounds, and three months' imprisonment for every
offence ; ' which offence to be prosecuted in the Court of King's Bench, or
at the assizes or general quarter sessions, within six months after the
offence committed and proved by two credible witnesses. But sect. 2
provides that the Act shall not hinder persons, not exceeding ten in
number, from presenting any public or private grievance or complaint
to any member of Parliament, or to the King, for any remedy to be there-
upon had ; nor extend to any address to His Majesty by the members of both
or either houses of Parliament, during the sitting of Parliament (x).

The Unlawful Drilling Act, 1820 (60 Geo. III. & 1 Geo. IV. c. 1), s. 1,
reciting that ' in some parts of the United Kingdom men clandestinely and
unlawfully assembled have practised military training and exercise, to the
great terror and alarm of His Majesty's peaceable and loyal subjects, and the
imminent danger of the public peace,' enacts (sect. 1) that 'all meetings
and assemblies of persons for the purpose of training or drilling them-
selves, or of being trained or drilled to the use of arms, or for the purpose
of practising military exercise, movements, or evolutions, without any
lawful authority from His Majesty, or the lieutenant, or two justices of
the peace of any county or riding, or of any stewartry, by commission
or otherwise, for so doing shall be, and the same are hereby prohibited
as dangerous to the peace and security of His Majesty's liege subjects,
and of his government ; and every person who shall be present at, or
attend any such meeting or assembly for the purpose of training and
drilling any other person or persons, to the use of arms, or the practice
of military exercise, movements, or evolutions, or who shall train or
drill any other person or persons to the use of arms, or the practice of
military exercise, movements, or evolutions, or who shall aid or assist
therein, being legally convicted thereof, shall be Hable to be transported [y)
for any term not exceeding seven {z) years, or to be punished by imprison-
ment not exceeding two years {a), at the discretion of the Court in which
such conviction shall be had ; and every person who shall attend or be
present at any such meeting or assembly as aforesaid, for the purpose
of being, or who shall at any such meeting or assembly be trained or
drilled to the use of arms, or the practice of mihtary exercise, movements,
or evolutions, being legally convicted thereof, shall be liable to be punished

(x) &. 3. By the Bill of Rights (1 that nor any other" Act of Parliament had

Will. & M. sess. 2, o. 2, s. 1), art. 5' ' It is repealed it, and that it was in full force,

the right of the subjects to petition the R. v. Lord George Gordon, 2 Dougl. 571.
King, and that all commitments and prose- (»/) Now penal servitude. 20 & 21 Vict,

cutions for such petitioning are illegal.' It o. 3, s. 2, ante, p. 210.
was contended, that this article had vir- (z) Nor less than three years. 54 & 55

tuaUy repealed 13 Car. II. stat. 1, c. 5, but Vict. o. 69, s. 1, ante, p. 211.
Lord MansBeld declared it to be the unani- (o) Apparently with or without hard

moua opinion of the Court, that neither labour. 54 & 55 Vict, c 09, s. 1, ante, p. 212.

426 Of Disturhances of the Public Peace. [book Vi,

by fine and imprisonment, not exceeding two years, at the discretion
of the Court in which such conviction shall be had ' (6).

Where an indictment alleged that there was an unlawful meeting
of the defendant and of divers other persons unknown, for the purpose
of unlawfully practising military exercise, and which persons so met
and assembled were there without any lawful authority of the Queen,
&c., and that the defendant was present at and unlawfully did attend
the said meeting for the purpose of unlawfully training and drilling
divers persons unknown to the practice of military exercise ; Maule, J.,
held that the indictment was not bad for charging two offences (c).

An indictment upon this Act should aver that the meeting was for
the purpose of training and drilling, or of being trained and drilled to
the use of arms, or for the purpose of practising military exercises, move-
ments, or evolutions, and that the meeting was held without any lawful
authority from His Majesty, or the lieutenant, or two justices of the
peace, &c., by commission or otherwise (d).

Meetings within a Mile of Parliament when sitting. — The Seditious
Meetings Act, 1817 (57 Geo. III. c. 19), contains certain enactments
relating to meetings and assemblies of persons which are still in force (e).

Sect. 23, after reciting that it is highly inexpedient that pubhc
meetings or assemblies should be held near the houses of Parliament,
or near the courts of justice in Westminster Hall, on certain days, enacts,
that it shall not be lawful for any person to convene or call together, or to
give any notice for convening or calling together, any meeting consisting
of more than fifty persons, or for any number of persons exceeding fifty
to meet in any street, square, or open place, in the city or liberties of West-
minster, or county of Middlesex, within the distance of a mile from the
gate of Westminster Hall (except such parts of the parish of St. Paul's,
Covent Garden, as are within the said distance), for the purpose or on
the pretext of considering of or preparing any petition, &c., for alteration
of matters in Church or State, on any day on which the two houses, or
either house of Parliament, shall meet and sit . . . nor on any day on
which the courts shall sit in Westminster Hall (/) : and that if any
meeting or assembly for such purposes or on such pretexts shall be
assembled or holden on such day, it shall be deemed an unlawful assetrMy.
But there is a proviso that the enactment shall not apply to any meeting
for the election of members of Parliament, or to persons attending upon
the business of either house of Parliament, or any of the said courts {g).

(6) S. 2 provides for the dispersion of per- and were repealed in 1820 (60 Geo.

sons so assembled by justices of the peace, III. and 1 Geo. IV. o. 6). That Act and

constables, orpeaoe officers or persons acting the expired sections of the Act of 1817

in their aid and assistance, and for arresting were repealed in 1873 (36 & 37 Vict. b. 91).

and detaining or holding to bail such offen- The rest of the Act, so far as unrepealed,

ders. By s. 7 prosecutions for offences relates to unlawful combinations and oon-

against the provisions of the Act must be federacies (see p. 335), except s. 35, which

commenced within six months after the declares that nothing in the Act shall take

offence committed. S. 4 makes the Act away, abridge, or affect any law of the

alternative to other criminal remedies (vide realm for the suppression or punishment of

ante, pp. 4, 6. Ss. 5, 6 were repealed in 1893 any offence named therein [vide ante,

(56 & 57 Vict. c. 61). S. 8 was repealed in pp. 4. 5).

1873 (36 & 37 Vict. c. 91). (/) It is doubtful whether this applies to

(d) Gogarty v. R., 3 Cox, 306 (Ir.). (g) S. 24 was repealed in 1890 (53 & 54

(e) Ss. 1-22 of the Act expired in 1818, Vict. c. 33).

CHAP. 1.] Riots, Routs, and Unlawful Assemblies. 427

Sect. IV. — Affrays.

Common Law. — An affray is the fighting of two or more persons in
a public place, to the terror of His Majesty's subjects, and is a misdemeanor
at common law {h). It differs from riot in that it may be committed by
two persons (i). By public place seems to be meant a street or highway,
or other place where the public may pass or be as of right (j). Where
two of the prisoners fought together amidst a great crowd of persons,
and the others were present aiding and assisting, at a place far from any
highway, and the fight ceased on the appearance of some peace-officers,
it was held that this was not an affray, because the scene of action was
to all intents and purposes a private place (Jc). A gathering for such a
fight or a prize fight is clearly an unlawful assembly, and' where there
is resistance to lawful authority exercised for the purpose of putting a
stop to it, the offence may amount to an affray, or even a riot (I). An
affray may fall short of a riot, though many persons are engaged in it.
Thus, if a number of persons met together at a fair or market, or on any
other lawful or innocent occasion, happen on a sudden quarrel to fall
together by the ears, they will not be guilty of riot, but only of a sudden
affray, of which none are guilty but those who actually engage in it ;
because the design of their meeting was innocent and lawful, and the
subsequent breach of the peace happened unexpectedly without any
previous intention (m).

An affray may be aggravated by the circumstances under which it
takes place or by its dangerous tendency ; where persons cooUy and
deliberately engage in a duel which must be attended by the risk of
murder, this is not only an open defiance of the law, but carries with
it a direct contempt of the justice of the nation, putting men under
the necessity of righting themselves (n). And it is an aggravated form
of affray violently to disturb the officers of justice in the due execution
of their office, by the rescue of a person legally arrested, or the attempt
to make such a rescue (o). An affray is severely punishable when
committed in the King's Courts, or even in the palace yard near those
Courts ; and it is highly finable even when made in the presence of an
inferior Court of justice (p). As to affrays in a church or churchyard,
vide ante, p. 401.

It is said that no quarrelsome or threatening words whatsoever

(h) 4 Bl. Com. 144 ; 3 Co. Inst." 158 ; for riot as well as assault, arising out of a

Burn's Just. tit. 'Affray' (I.). The word prize-fight.

affray is derived from the French effroi {I) R. v. Billingham, 2 C. & P. 234, Bur-

(terror). In 3 Co. Inst. 158, it is said that rough, J. The indictment was for riot,

an affray is a public offence to the terror of arising in a gathering of 1000 persons to

the King's subjects ; and is an English witness a prize-fight. A magistrate tried

word, and so called because it affrighteth to stop the fight, which resulted in tumult

and maketh men afraid ; and that it is in- and the rescue of a man arrested. Vide

quirable in a leet as a common nuisance. ante, p. 424.

(i) Vide ante, p. 409. (m) 1 Hawk. c. 65, s. 3.

(j) R. V. O'Neill [1871], Ir. Rep. 6 C. L. 1. (n) 1 Hawk. c. 63, ». 21.

(k) R. V. Hunt, 1 Cox, 177, Alderson, B. (o) 1 Hawk. o. 63, s. 22. And see post,

See 1 Hawk. c. 63, s. 1. If all the persons p. 567, ' Rescue.'

present went to see the fight, they were all (p) 1 Hawk. o. 21, ss. 6, 10 ; e. 63, s. 23.

guilty of an assault. R. v. Perkins, 4 C. & As to striking in palaces or courts of justice,

P. 537, Patteson, J. The indictment was see post, p. 891, ' Aggravated Assaults."

42d Of Disturbances of the PubUc Peace. [book Vl.

amount to an affray {q), and that no one can justify laying his hands on
those who barely quarrel with angry words, without coming to blows :
but it seems that a constable may, at the request of the party threatened,
carry the person who threatens to beat him before a justice, in order to
find sureties. And though mere words cannot in law create such terror
as to constitute an affray, yet there may be an affray without actual
violence ; as where persons arm themselves with dangerous and unusual
weapons, in such a manner as will naturally cause terror to the people,
which is said to be an offence at common law (r).

Statute.— The Statute of Northampton (2 Bdw. III. c. 3) enacts,
that ' no man, great or small, of what condition soever, except the King's
servants in his presence, and his ministers in executing of the King's
precepts or of their office, and such as be in their company assisting them,
and also upon a cry made for arms to keep the peace (armesde pees), and
the same in such places where such acts do happen (s), be so hardy to
come before the King's justices or other of the King's ministers doing
their office, with force and arms, nor bring no force in affray of peace (t),
nor to go nor ride armed, by night nor by day, in fairs or markets, nor in
the presence of the King's justices, or other ministers, nor in no part else-
where ; upon pain to forfeit their armour to the King, and their bodies
to prison at the King's pleasure. And that the King's justices in their
presence, sheriffs, and other ministers in their bailiwicks, lords of fran-
chises and their bailiffs in the same, and mayors and bailiffs of cities
and boroughs within the cities and boroughs, and borough-holders,
constables, and wardens of the peace within their wards, shall have power
to execute this Act (u). And that the justices assigned at their coming
down into the country shall have power to inquire how such oflBlcers
and lords have exercised their offices, and to punish them whom they
find that have not done that which pertained to their office' («).

The wearing of arms is not punishable under this statute unless it be
accompanied with such circumstances as arfe apt to terrify the people ;
from whence it seems clearly to follow, that persons of quality are in no
danger of offending against the statute by wearing common weapons,
or having their usual number of attendants with them for their ornament
or defence, in such places, and upon such occasions, in which it is the
common fashion to make use of them, without causing the least suspicion
of an intention to commit any act of violence, or disturbance of the
peace (w). And no person is within the statute who arms himself to

(q) 1 Hale, 456 ; 1 Hawk. c. 63, s. 2. and reads the latter word as ' pays ' in dis-

(r) 1 Hawk. o. 63, ss. 2, 4 ; Burn's Jus- regard of its gender,

tice, tit. ' Affray.' (u) Offences within this statute were

{s) These obscure words may mean specifically mentioned in the old form of

proclamation of a joust or tournament, or the commission of the peace settled in

of places where such may be held. See 1 30 Eliz.

Rev. Stat. (2nd ed.) p. 88n. Tournaments, (u) Two early statutes enforcing this Act

except by command of the King, seem to have been repealed, viz., 7 Rich. II. c. 13

have been illegal. R. v. Coney, 8 Q.B.D. (in 1857), and 20 Rich. II. c. 1 (in 1863 as

534, 549, Stephen, J. to England, and in 1872 as to Ireland). A

(t) The words of the statute are ' en a^rai statute of 1313 (7 Edw. II.) requires per-

de la pees ' [paix]. In another part of the sons to come to Parliament, ' without force

statute ' armes de pees ' clearly means and without armour, well, and peaceably.'

' arms to keep the peace.' Coke, 3 Inst. (w) 1 Hawk. o. 63, o. 9.
158, cites the words as ' en effraier de la pais,'

CHAP. I.] Riots, Routs, and Unlawful Assemblies. 429

suppress dangerous rioters, rebels, or enemies, and endeavours to suppress
or resist such disturbers of the peace and quiet of the reabn (aj). But a
man cannot excuse wearing such armour in public by alleging that
a person threatened him, and that he wears it for the safety of his person
from the assault : though no one incurs the penalty of the statue by
assembling his neighbours and friends in his own house, against those
who threaten to do him any violence therein, because a man's house is
as his castle {y). In E. v. Meade (2;), a single person who went armed
in the streets without lawful occasion, or so acted as to be a nuisance and
terror to the public, was convicted under this statute.

Punishment. — The punishment of affrays at common law or under
2 Edw. III. c. 3, is by fine and (or) imprisonment without hard labour.
The term of imprisonment and the amount of the fine are in the discretion
of the Court {a).

As to the powers and duties of officials and private persons to stop
affrays, see fost, p. 431.

Sect. V. — Indictment, Evidence and Punishment.

Indictment. — An indictment for riot, rout, or unlawful assembly must
shew that there was an unlawful assembly of more than two persons (&).
It is not clear whether it is now necessary that an indictment for riot should
contain the words ' to the terror of the people ' (c). Where the indictment
is aptly drawn the defendants if acquitted of riot may be convicted of rout
or of unlawful assembly if the facts so warrant. Where six persons were
indicted for a riot, two of them died without being tried, two were
acquitted, and the other two were found guilty. The Court refused
to arrest the judgment, saying, that as the jury had found two persons to
be guilty of a riot, it must have been together with those two who had
never been tried, as it could not otherwise have been a riot {d). But two
persons only cannot be guilty of a riot (e) . Where the offence was specially
laid as a riot, the riotose extending to all the facts, and stated a battery of
an individual as part of the riot : it was held that an acquittal of the riot
was an acquittal on the whole indictment. But it was also held, that if
the indictment had been, that the defendants, with divers other disturbers
of the peace, had committed this riot and battery, the defendants might
have been found guilty of the battery (/).

{x) 1 Hawk. c. 63, s. 10. down of fences a conviction could be had

(y) Id. 8. 8, and see in ss. 5, 6, 7, as to for unlawful assembly. It is not, however,

the proceedings of justices, &o., executing clear that the words are in reality a formal

the Act. conclusion. They may fairly be treated an

(z) [1903] 19 Times L. R. 540, Wills, J. essential part of the description of the

(a) 1 Hawk. o. 63, s. 20 ; 4 Bl. Com. 145, oflEence. See Field v. Receiver of Metrop.

vide ante, p. 249. Police [1907], 2 K.B. 853. An indictment

(6) R. V. Soley, 2 Salk. 593, 594. under s. 1 of the Riot Act never needed this

formal conclusions unnecessary. In R. v. 153, and MS. C. S. G., per Patteson, J.

Hughes [1830], 4 C. & P. 373 ; 6 St. Tr. (d) R. v. Scott, 3 Burr. 1262.

(N. S.) 1101, Park, J., held such conclusion (e) R. v. Sadbury, 1 Ld. Raym. 484.

necessary at common law. But in R. v. And see 19 Vin. Abr. tit. ' Riots (E.) ' 1.

Cox [1831], 4 C. & P. 538, Patteson, J., (/) R. v. Sadbury, 1 Ld. Raym. 484. R.

held that on an indictment for riot without v. Ingram, 2 Salk. 593 ; 12 Mod. 262. 19

such conclusion, but charging the cutting Vin. Abr. tit. ' Riots (E.) ' 6.

430- Of Disturbances of the Public Peace. [book vi.

Where several were indicted for a riot, it was moved, that the prose-
cutor might name two or three, and try it against them, and that the rest
might enter into a rule to plead not guilty {guilty if the others were found
guilty) ; and as a rule was made accordingly ; this being to prevent the
expense of putting them all to plead (gr).

Evidence. — In substance the rules as to admissibility of evidence in
cases of riot, rout, or unlawful assembly are the same as in cases of
conspiracy, the offences like that offence involving concerted action (h).
Upon an indictment against H. and others, for a conspiracy and unlawful
meeting together with persons unknown, for the purpose of exciting
discontent and disaffection, at which meeting H. was the chairman, it
was held that resolutions passed at a former meeting assembled a short
time before, in a distant place, at which H. also presided, and the avowed
object of which meeting was the same as that of the meeting mentioned
in the indictment, were admissible in evidence, to show the intention of H.
in assembling and attending the meeting in question. And it was also
held that a copy of these resolutions delivered by H., to the witness at the
time of the former meeting, as the resolutions then intended to be proposed
and which corresponded with those which the witness heard read from a
written paper, was admissible, without producing the original (i).

In the same case it appeared that large bodies of men had come to
the meeting in question from a distance, marching in regular order
resembling a military march ; and it was held to be admissible evidence,
to shew the character and intention of the meeting, that within two
days of the time at which it took place considerable numbers were seen
training and drilling before daybreak, at a place from which one of
these bodies had come to the meeting, and that, upon their discovering
the persons who saw them, they ill-treated them, and forced one of them
to take an oath never to be a king's man again. And it was also admitted
as evidence for the same purpose, that another body of men in their
progress to the meeting, on passing the house of the person who had been
so ill-treated, expressed their disapprobation of his conduct by hissing {j).

It was decided in the same case that parol evidence of inscriptions and
devices on banners and flags displayed at a meeting was admissible
without producing the originals (k), but that upon the indictment in
question evidence of the supposed misconduct of those who dispersed
the meeting was not admissible (f).

Where the question was, with what intention a great number of
persons assembled to drill, declarations made by those assembled and
in the act of drilling, and further declarations made by others who were
proceeding to the place, and solicitations made by them to others to
accompany them declaratory of their object, were held to be admissible
in evidence for the purpose of showing their object (m). And in general,
evidence is admissible to show that the meeting caused alarm and appre-
hension, and to prove information given to the civil authorities, and the
measures taken by them in consequence of such information (w).

(g) R. V. Middlemoro, 6 Mod. 212. (/c) Id. ibid.

(K) Vide ante, p.. 191 ; fost, Bk. xiii. c. ii. (I) Id. ibid.

(i) R. V. Hunt, 3 B. & Aid. 566 ; 1 St. (m) Redford v. Birley, 1 St. Tr. (N. S.)

Tr. (N. S.) 171. 1071 : 3 Stark. (N. P.) 76, Hoboyd, J.
(;•) Id. ibid. (n) Id. ibid.

CHAP. I.] Riots, Routs, and Unlawful Assemblies. 431

It was held, that the prisoners must first be identified as forming
part of the crowd before the riot is proved (o). But this is a very incon-
venient course, causing much waste of time by recalling witnesses ;
and it has since been held that on an indictment for riot the prosecutor
is entitled to prove the acts of any rioters before he connects the others
with the riot (p), and this is in conformity with the practice in cases of
conspiracy {q).

Punishment. — (1) Riot. — Eiot at common law is an indictable
misdemeanor punishable by fine and (or) imprisonment without hard
labour (r).

By the Hard Labour Act, 1822 (3 Geo. IV., c. 114 ) (s), on conviction
of riot the Court may impose a sentence of imprisonment with hard
labour in addition to or in lieu of any punishment which could be inflicted
before 1822 (<). This statute does not apply to felonious riot. The
punishment for statutory offences in relation to riot are stated under
the statutes {ante, pp. 414-416). Common-law riot is triable at quarter
sessions (u) ; offences under sects. 1-5 of the Eiot Act are not so
triable {v).

(2) Routs, Unlawful Assemblies, and Arrays. — These offences are mis-
demeanors punishable at common law by fine or imprisonment without
hard labour or both {vide ante, p. 249), and triable at quarter sessions (m).

Sect. VI. — Suppression of Riots, &c.

The powers and duties of public officers and private persons with
reference to the suppression of unlawful assemblies, affrays, routs, and
riots, rest partly on the common law and partly on statutes.

On the constitution of the office of justices of the peace (34 Edw. III.
c. 1) they were given power to restrain rioters and all other barrators,
and to pursue, arrest, take, and chastise them according to their trespass
and offence, and to cause them to be imprisoned and duly punished
according to the law and customs of the realm (w). This statute has
been construed as authorising a single justice to arrest, or by parol com-
mand to authorise the arrest, of persons riotously assembled. Those
early statutes, still unrepealed, were passed for the suppression of riots (sc),

(o) So ruled by Vaughan, Parke and indictments for riot by certiorari, see 21

Alderson, BB., on the special commission Jac. I. o. 8, s. 4.

of 1830 at Salisbury, and approved by all (v) 5 & 6 Vict. c. 38, post, Bk. xii. c. i.

the judges. Per Alderson, B., in R. v. (w) ' Unlawful assemblings ' and ridings

Nicholson, 1 Lew. 300, where the same with armed force against the peace are

course was adopted. specifically mentioned in the old form of

(p) B. V. Cooper, Stafford Summer Ass. commission of the peace, settled 30 Eliz.

1850, WiUiams, J. MSS. C. S. G. and used until 1878.
(q) Ante, p. 191. (x) Their immediate object is said to

(r) 1 Hawk. c. 65, s. 12. have been to compel sheriffs and others to

(s) Ante, p. 212. put the law in force against Lollards and

if) One of these punishments was the other organisations of the fourteenth and

pillory (1 Hawk. c. 65, s. 12), which was fifteenth centuries. Wright's Report on

partly abolished in 1816 (56 Geo. III. c. 138) Criminal Law (Pari. Pap., 1878, H.L. No.

and completely abolished in 1837. Vide 178), p. 29. See 1 Hawk. c. 65, s. 14 et seq.

ante, -p. 250. Burn's Justice (30th ed.), tit. 'Riot.' B.

(u) 34 Edw. III. c. 1 ; 15 Rich. II. c. 2 ; v. Gulston, 2 Ld. Raym. 1210.

5 & 6 Vict. u. 38, s. 1. As to removal of

432 Of Disturbances of the Public Peace. [book vi.

17 Rich. II. c. 8 (1393) (y), 13 Hen. IV. c. 7 (1411) (z), and 2 Hen. V. st. 1
c. 8 (1414) (a). The first two require the use of the posse comitatus (6)
by the sheriff, &c., in cases of riot, rout, and unlawful assembly, and
authorise the arrest of offenders and the recording of offences committed
in the presence of the justices. The third provides for the case of default
by justices in enforcing the Act of 1411, and prescribes punishments
for great and petty riots and for neglecting to aid in suppressing riot.
And it has been held to be an indictable misdemeanor to refuse to aid
a constable in suppressing a riot or affray (c). The duties of private
persons in such cases were thus expounded by Tindal, C.J., in his charge
to the grand jury in the case of the Bristol Riots {d), as follows : ' By
the common law every private person may lawfully endeavour of his
own authority, and without any warrant or sanction of the magistrate,
to suppress a riot by every means in his power. He may disperse, or
assist in dispersing, those who are assembled ; he may stay those who
are engaged in it from executing their purpose (e) ; he may stop and
prevent others whom he shall see coming up from joining the rest ; and
not only has he the authority, but it is his bounden duty as a good subject
of the King to perform this to the utmost of his ability. If the riot be
general and dangerous, he may arm himself against the evil doers to
keep the peace (/). Such was the opinion of the judges of England in
the time of Queen Elizabeth, '' the case of Arms" (g), although the judges
add that it would "be more discreet for everyone in such a case to attend
and be assistant to the justices, sheriffs, and other ministers of the King
in the doing of it." It would undoubtedly be more advisable so to do ;
for the presence and authority of the magistrate would restrain the
proceeding to such extremities until the danger were sufficiently immediate,
or until some felony was either committed, or could not be prevented
without recourse to arms ; and at all events the assistance given by men
who act in subordination and concert with the civU magistrate will be
more effectual to attain the object proposed than any efforts, however
well intended, of separated and disunited individuals. But if the occasion
demands immediate action, and no opportunity is given for procuring
the advice or sanction of the magistrate, it is the duty of every subject
to act for himself, and upon his own responsibility in suppressing a
riotous and tumultuous assembly ; and he may be assured that what-
ever is honestly done by him in the execution of that object will be sup-
ported and justified by the common law.' This charge was approved
in Phillips v. Eyre (h).

The duties of officers as to the suppression of rioters are thus laid

{y) 1 Rev. Stat. (2nd ed.) 180. (/) From this it would seem that they

(a) Ibid. 189. See Bristol Special Com- may use arms to suppress the riot in case
mission[1832], 3 St. Tr. (N. S.)5; 5C. &P. of necessity, where the riots savour of
254, Tindal, C.J. rebeUion (1 Hawk. c. 65, s. 11), or where a

(o) Ibid. 197. felony is about to be committed. Hand-

(b) i.e., the general levy of all able-bodied cock v. Baker, 2 B. & P. 265, Chambre, J.
men in the county. See Man. Mil. Law As to military intervention, see post, p. 434.
(ed. 1907), 146. (?) Poph. 121. Cf. Kel. (J.) 76.

(d) 3 St. Tr. (N. S.) 1, 4; 5 C. & P. 252, ing the judgment of the Exchequer
261. Chamber.

(e) See 1 Hawk. c. 65, s. 11.

CHAP. 1.] Riots, Routs, and Unlawful Assemblies. 433

down by Tindal, C.J., in the Bristol Kiots case (i). ' Still further, by the
common law, not only is each private subject bound to exert himself to
the utmost, but every sheriff, constable, and other peace-officer, is called
upon to do all that in them lies for the suppression of riot, and each has
authority to command all other subjects of the King to assist him in
that undertaking. By an early statute, which is still in force (13 Hen.
IV. c. 7) (j), any two justices, with the sheriff or under-sheriff of the county,
may come with the power of the county, if need be, to arrest any rioters,
and shaU arrest them ; and they have power to record that which they
see done in their presence against the law ; by which record the offenders
shall be convicted (k), and may afterwards be brought to punishment.
And here I must distinctly observe, that it is not left to the choice or will
of the subject, as some have erroneously supposed, to attend or not to the
call of the magistrate, as they think proper, but every man is bound when
called upon, under pain of fine and imprisonment, to yield a ready and
implicit obedience to the call of the magistrate and to do his utmost in
assisting him to suppress any tumultous assembly ' (I). For in the suc-
ceeding reign another statute (2 Hen. V., st. 1, c. 8) was passed which
enacts that the King's Hege people being sufficient to travel in the counties
where such routs, assemblies, or riots shall be, shall be assistant to the
justices, commissioners, and sheriffs, and other officers upon reasonable
warning (m), to ride with them in aid to resist such riots, routs, and
assembhes on pain of imprisonment and to make fine and ransom to the
King (n). In later times the course has been for the magistrate on
occasions of actual riot and confusion, to call in the aid of such persons
as he thought necessary, and to swear them in as special constables ;
and in order to prevent any doubt, if doubt could exist, the statute
1 Geo. IV. c. 37, and (since that has been repealed by the statute 1 & 2
Will. IV. c. 41) (o) the statute last referred to has invested the magis-
trate with that power in direct and express terms when tumult, riot, or
felony was only likely to take place or might reasonably be apprehended.'
The magistrates may also call in the aid of the local militia (p), the yeo-
manry {q), and the reserve forces (r), and the territorial army (s), and
may obtain on requisition the aid of the regular army (t). Members of the

(i) 3 St. Tr. (N. S.) 1, 5 ; 5 C. & P. 262. rioters which may happen in suppressing

(?) Ante, p. 432. the riot is justifiable. Dalton, o. 82. 1

(k) In the same manner as ia contained Hale, 495. 4 Bl. Com. 146, 147. Bristol

in the Statute of Forcible Entries. 5 Rich. Riots Charge, 3 St. Tr. (N. S.) 1, 6, Tindal,

II. Stat. 1, c. 7, post, p. 442. C.J. R. v. Pinney, 3 St. Tr. (N. S.) 11.

{I) See R. V. Neale, 9 C. & P. 431 ; 3 St. (o) Special Constables Act, 1831. By

Tr. (N. S.) 1312, Littledale, J. s. 8, disobedience to the summons is specifi-

(m) The duty attaches even though pre- cally punishable. As to Ireland, see 2 & 3

cepts for the posse comitatus have not been Will. IV. c. 108. The powers of the Act

made out or signed. R. v. Pinney, 3 St. of 1831 were used during the Trafalgar

Tr. (N. S.) 11. Square disturbances in 1886.

In) Under this Act it has been held that (p) 52 Geo. III. c. 38, S3. 42, 92, 94.
knights, gentlemen, yeomen, husbandmen, (q) 44 Geo. III. c. 54, s. 23 ; 56 Geo. III.

labourers, tradesmen, servants, appren- c. 39 ; 1 Edw. VII. u. 14, s. 1. See the

tices and all others, except women, clergy- Peterloo riots, 1 St. Tr. (N. S.) 1071.
men, decrepit persona and infants under [r] 45 & 46 Vict. o. 48, s. 5.
fifteen, are bound to attend the justices on {s) See 7 Edw. VII. c. 9.
pain of fine and imprisonment, and that («) See King's Regulations, ss. 948-968.

any battery, wounding, or killing of the Man. Mil. Law, o. xiil., ss. 34, 35.

VOL. I.

2 F

434 Of Disturbances of the Public Peace. [book vi.

militia and reserve and territorial forces, when called out in aid of the
civil power, are subject to military law (m).

The powers and duties of magistrates and police to disperse riots, &c.,
do not depend on the making of the proclamation to disperse, the provisions
of the Riot Act being in aid, and not in supersession, of the common law {v),
and where the Riot Act has been read it does not interrupt or suspend
such powers and duties during the following hour (w).

In R. V. Kennett {x), the Lord Mayor of London was tried in 1780
for neglect of duty during the Gordon Riots by not reading the Riot Act
and releasing prisoners.

Upon an information against the Mayor of Bristol for neglect of
duty in not suppressing the Bristol riots in 1831, which was tried at bar,
it was laid down that the general rules of law require of magistrates
that at the time of riots they should keep the peace, restrain the rioters,
and pursue and take them ; and to enable them to do this, they may
call on all the King's subjects to assist them, which they are bound to
do upon reasonable warning ; and in point of law, a magistrate would be
justified in giving firearms to those who thus came to assist him, but it
would be imprudent in him to give them to those who might not know
their use, and who might be under no control, and who, not being used
to act together, might be cut off from the rest of the force, and the arms,
by those means, get into the hands of the rioters («/).

It is no part of the duty of a magistrate to go out and head the con-
stables, or to marshal and arrange them ; neither is it any part of his
duty to hire men to assist him in putting down a riot ; nor to keep a
body of men, as a reserve, to act as occasion may require ; nor is it any
part of his duty to give any orders respecting the firearms in gimsmiths'
shops. Nor is a magistrate bound to ride with the miUtary : if he gives
the military officer orders to act, that is all that is required of him (z).

The justices have also powers, if a riot is apprehended or is proceeding,
to adjourn elections {a), or to close theatres (b), or public houses (c).

Military Forces of the Crown. — With respect to the powers, duties,
and responsibilities of soldiers in the suppression of riots, Tindal, C.J.,
in the Bristol Riots case [d) thus stated the law : ' The law acknowledges
no distinction in this respect between the soldier and the private individual.
The soldier is still a citizen, lying under the same obligation, and invested
with the same authority to preserve the peace of the King as any other
subject (e). If the one is bound to attend the call of the civil magistrate,
so is the other ; if the one may interfere for that purpose when the
occasion demands it, without the requisition of the magistrate, so may
the other too ; if the one may employ arms for that purpose, when arms

{«) 44 & 45 Vict. c. 58, s. 176 (5) ; 7 Parke, and Taunton, JJ.
Edw. VII. c. 9, s. 28. (z) K. v. Pinney, ibid.

(v) R. V. Fursey, 6 C. & P. 81 ; 3 St. Tr. (a) 2 & 3 WiU. IV. c. 45, s. 30 ; 5 & 6

(N. S.) 543. Will. IV. 0. 36, a. 8 ; 16 & 17 Vict. o. 15,

(w) R. V. Gordon, 21 St. Tr. 493. And s. 3 ; 35 & 36 Vict. o. 33, sa. 10, 15, 17.
see 2 St. Tr. (N. S.) 1029. (6) 6 & 7 Vict. o. 68, a. 9.

(x) 5 C. & P. 282 : 3 St. Tr. (N. S.) 506, (c) 35 & 36 Vict. c. 93, s. 23.

cit. And see Lord Advocate v. Stewart, (d) 3 St. Tr. (N. S.) 1.

18 St. Tr. 875. (e) See Burdett v. Abbot, 4 Taunt. 402.

(y) R. V. Pinney, 3 St. Tr. (N. S.) 11 ; 5 C. Redford v. Birley, 1 St. Tr. (N. S.) 1170.
& P. 254; 3 B. & Ad. 946, Littledale,

cHAp. i.] Uiots, Routs, and Unlawful AssembUes. 4S5

are necessary, the soldier may do the same. Undoubtedly the same
exercise of discretion which requires the private subject to act in subordin-
ation to and in aid of the magistrate, rather than upon his own authority,
before recourse is had to arms, ought to operate in a stronger degree
with a military force. But where the danger is pressing and immediate,
where a felony has actually been committed, or cannot otherwise be
prevented, and from the circumstances of the case no opportunity is
offered of obtaining a requisition from the proper authorities (/"), the
military subjects of the King not only may, but are bound to do their
utmost, of their own authority, to prevent the perpetration of outrage,
to put down riot and tumult, and to preserve the lives and property of
the people.'

The law as laid down in this charge was adopted in the Eeport on
the Featherstone Eiots {g), where it is said that ' a soldier for the purpose
of establishing civil order is only a citizen armed in a particular manner.
He cannot, because he is a soldier, excuse himself if, without necessity,
he takes hiunan life. A soldier can only act by using his arms. The
weapons he carries are deadly. They cannot be employed at all without
danger to life, and in these days of improved rifles and perfected ammuni-
tion, without some risk of injuring distant and possibly innocent
bystanders. . . . The whole action of the military when called in ought
to be based on the principle of doing, and doing without fear, that which
is absolutely necessary to prevent serious crime, and of exercising all
care and skill with regard to what is done ; and the presence of a magistrate,
while expedient, is not in the least necessary to entitle the military to
act, even by firing, to prevent felonious outrage or dangerous riot' (h).
From the right to suppress riots flows the right to use such force
as is reasonably necessary to disperse the rioters assembled (i). The
degree of force which may be used depends on the nature of the riot,
and must always be moderated and proportioned to the circumstances
of the case, and to the end to be obtained. The taking of life can only
be justified by the necessity of protecting persons or property against
various forms of violent crime, or by the necessity of dispersing a riotous
crowd which is dangerous unless dispersed, or in the case of persons
whose conduct has been felonious, through disobedience to the provisions
of the Kiot Act (/), and who resist by force the attempt to disperse
and apprehend them (k).

Unlawful Assemblies. — ^What has been above stated as to riots is
also applicable to unlawful assemblies, even when no act of violence has
been committed (Z), subject to the qualification that unless such assembly
is calculated to cause a serious breach of the peace, the action of ofiicers
of the law or private persons towards its suppression must be limited

(/) Vide ante, p. 433. Regulations, §§ 948-968.

(?) Pari. Pap. 1893, c. 7234. The report (i) See R. v. Neale, 9 C. & P. 435. R. v.

was mainly the work of Lord Bowen. See Vincent, uli sup.

the further report of 1908 (Pari. Pap. 1908, (?) Ante, p. 412,

0. 236), as to the employment of the mill- (k) Featherstone Riots Report (Pari,

tary to suppress riots. Pap. 1893, c. 7234), Lord Bowen.

(h) Cf. R. V. Pinney, 3 St. Tr. (N. S.) 11. (I) R. v. Vincent, 9 C. & P. 94, Alderson,

The duties of the mUitary in aid of the B.
civil power are laid down in the King's

2f2

436 Of Disturbances of the Public Pedc&. [Book vl.

to what is reasonably needed to prevent a disturbance. The officers
of the law may order such assembly to disperse, arrest those who refuse
to disperse, stop others from joining them, and if resisted, use force to
compel obedience (m). Such resistance, if concerted, might amount
to riot {n).

Affrays. — Any person who sees others engaged in a light or affray
may arrest them while still engaged in the fight, and detain them till
their passion has cooled and their desire to break the peace has ceased,
and then deliver them to a peace-officer ; and so any person may arrest
an affrayer after the actual violence is over, but whilst he shews a
disposition^^to renew it (o). The principle is that for the sake of the
preservation of the peace, any individual who sees it broken may restrain
the liberty of him whom he sees breaking it, so long as his conduct shews
that the public peace is likely to be endangered by his acts. WhUst
persons are assembled who have committed acts of violence, and the
danger of their renewal continues, the affray itself maybe said to continue :'
and during the affray a constable may, not merely on his own view,
but on the information and complaint of. another, arrest the offenders,
and of covirse the person so complaining is justified in giving the charge
to the constable (p). If either party is dangerously wounded in an
affray, and a bystander, endeavouring to arrest the other, is not able
to arrest him without hurting or even wounding him, he is in no way
liable to be punished, inasmuch as he is bound, under pain of fine and
imprisonment, to arrest such an offender, and either to detain him till
it appears whether the party will live or die, or to carry him before a
justice of peace {q). A constable is not only empowered, but bound
to do his best to stop an affray which occurs in Ms presence (r), and is
also boimd, in case of need, to call for the assistance of others, who, on
refusal, are guilty of misdemeanor and liable to fine and imprisonment.
To support an indictment against a person for refusing to aid and assist
a constable in the execution of his duty in quelling a riot, it is necessary
to prove : (1) that the constable actually saw a breach of the peace
committed by two or more persons ; (2) that there was a reasonable
necessity for the constable calling upon other persons for their assistance
and support ; and (3) that the defendant was duly called upon to render
his assistance, and that, without any physical impossibility or lawful
excuse, he refused to give it. It is immaterial whether the aid of the
defendant, if given, would have proved sufficient or useful (s). In the
case of a violent quarrel in a house, the constable may break open the

(m) 1 Hawk. c. 65, s. 11. See particularly party, in thus doing what the law both

the charge of Tindal, C.J., to the Bristol allows and commends, he may well justify

grand jury, 3 St. Tr. (N. S.) 1, ante, p. 432, it ; inasmuch aa he is no way in fault, and

(») See E. V. Cunninghame Graham, 16 the damage done to the other was occa-

Cox, 420, ante, p. 412, 414. sioned by a laudable intention to do him a

(o) 1 Hawk. c. 63, s. 11, where it is kindness,

said that it seems clearly to follow, that if (p) See Timothy v. Simpson, 1 Cr. M. &

a man receive a hurt from either party, in R. 757.

thus endeavouring to preserve the peace, (q) 1 Hawk. c. 63, a. 12. 3 Co. Inst. 158.

he shall have his remedy by an action (r) See the charge of Tindal, C.J., ante,

against him ; and that upon the same p. 433.

ground it seems equally reasonable that if (s) R. v. Brown, C. & M. 314. See R.

he unavoidably happen to hurt either «. Sherlock, L. R. 1 C. C. R. 20.

CHAP. I.] Riots, Routs, and Unlawful Assemblies.

437

doors to preserve the peace ; and if afirayers fly to a house, and he follow
with fresh suit, he may break open the doors to take them (t). And so
far is the constable entrusted with a power over all actual afirays, that
though he himself is a sufierer by them, and therefore liable to be objected
against, as likely to be partial in his own cause, yet he may suppress ;
and therefore if an assault be made upon him, he may not only defend
himself but also imprison the offender in the same manner as if he were
in no way a party (u). If a constable sees persons either actually engaged
in an affray, as by striking, or offering to strike, by drawing their weapons,
&c., or upon the very point of entering upon an affray, as where one
threatens to kUl, wound, or beat another, he may carry the offender
before a justice of the peace, to be dealt with according to law for his
offence. It is said that he ought not to arrest persons who-are quarrelling
by words only, without any threats of personal hurt : and that he may
only in such a case command them to avoid fighting (v). At common
law (w), where the affray is over before the constable arrives, he cannot
without a justice's warrant arrest the affrayers {x), unless a felony has
been committed. But it would seem that where the affray has been
stopped by private enterprise before his arrival he may take over affrayers
arrested by private persons and carry them before a justice (y).

A justice of peace may and must do all such things for the suppression

(t) 1 Hawk. 0. 63, ss. 13, 16. But, qu.,
if a constable can safely break open the
doors of a dwelling house in such case,
without a magistrate's warrant. At least,
it would seem, there must be some circum-
stances of extraordinary violence in the
affray to justify him in so doing.

(u) Id. ibid. s. 15.

{«) Vide 1 Hawk. u. 63, a. 14.

(w) Cook V. Nethercote, 6 C. & P. 741,
Alderson, B. See the Metropolitan Police
Act, 1839 (2 & 3 Vict. u. 47), s. 65, as to the
apprehension of persons on a charge of
aggravated assault committed out of sight
of a police officer.

(x) Cook V. Nethercote, supra. Fox v.
Gaunt, 3 B. & Ad. 798. R. v. Curvan, 1
Mood. 132. R. V. Bright, 4 C. & P. 387.
R. V. Light, D. & B. 332. R. v. Walker,
Dears. 358. See these cases, post, and
Cohen v. Huskisson, 2 M. & W. 477.
Baynes v. Brewster, 2 Q.B. 375. Webster
V. Watts, 11 Q.B. 311. In Timothy v.
Simpson, 1 Cr. M. & E. 757, the Court said :
' the power of a constable to take into his
custody, upon a reasonable information of a
private person under such circumstances,
and of that person to give in charge, must
be correlative. Now, as to the authority
of a constable, it is perfectly clear that he
is not entitled to arrest in order himself to
take sureties of the peace, for he cannot
administer an oath. Sharrock v. Hanne-
mer, Cro. Eliz. 375, S.C. nom. Scarrett v.
Tanner, Owen, 105. But whether he has
that power in order to take before a magis-
trate, that he may take sureties of the
peace, is a question on which the authori-

ties differ. Hale seems to have been of
opinion that a constable has this power (2
H. P. C. 89), and the same rule was laid
down at Nisi Prius by Lord Mansfield, in a
case referred to in 2 East, 306, and by
Buller, J., in two others, one quoted in the
same place, and another cited in 3 Camp.
421. On the other hand, there is a dictum
to the contrary in Brooke's Abridgment,
tit. ' Faux Imprisonment,' which is referred
to -and adopted by Coke in 2 Inst. 52 ; and
in R. V. Tooley, 2 Ld. Raym. 1301, Holt,
C.J., expressed .the same opinion. Eyre,
C. J., in Coupey v. Henley, 1 Esp. 540, does
the same, and many of the text-books state
that to be the law. Burn's Just. 258, tit.
'Arrest' (30th ed.) ; Bac. Abr. (D.) tit.
' Trespass,' 53. 2 East, P. C. 506. 2 Hawk,
c. 13, s. 8.

(y) 1 Hawk. u. 63, s. 17, citing Lamb.
131, and Dalt. c. 8. Dalton says,: ' every
private man, being present, may stay the
affrayers till their heat be over, and then
deliver them to the constables to imprison
them tin they find surety for the peace ' •
which seems to imply that they may take
them before a justice, in order that they
may find such sureties : and as it seems
that the private individual might take
them for that purpose before a justice, it is
but reasonable that the constables should
have the authority to take them likewise.
See ante, p. 433 ; and see Griffin v. Coleman,
4 H. & N. 265, as to a constable taking
before a magistrate, without due inquiry, a
man arrested and locked up by another
constable on a false charge of assault.

438 Of Disturbances of the Public Peace. [book vi.

of an affray, which private men or constables are either enabled or
required by law to do. It would seem that he cannot, without a warrant,
authorise the arrest of any person for an affray out of his view, but
may issue his warrant to bring the offender before him, in order to compel
him to find sureties for the peace (z).

{z) 1 Hawk. c. 63, s. 19. Vide ante, p. 433, as to powers and duties of justices with

reference to riots.

( 438a )

CANADIAN NOTES.

DISTURBANCES OF ^THE PUBLIC PEACE. '

Biots, Bouts, Unlawful Assemblies, and Affrays.
Sec. 1. — Biots.

Definition. — Code sec. 88.

A procession having been attacked by rioters, the prisoner, one
of the processionists, and in no way connected with the rioters, was
proved during the course of the attack to have fired off a pistol on
two occasions, first in the air, and then at the rioters. So far as
appeared from the evidence the prisoner acted alone and not in con-
nection with any one else. It' was held that a conviction for riot could
not be sustained. R. v. Corcoran (1876), 26 U.C.C.P. 134.

Where before the Code a person was indicted for a riot and assault,
and the jury found him guilty of a riot, but not of the assault
charged; it was held that the conviction for riot could not be sus-
tained, the assault, the object of the riotous assembly, not having
been executed; although the defendant might have been guilty of
joining in an unlawful assembly. R. v. Kelly (1857), 6 U.C.C.P. 372.
The present section makes it unnecessary that the object of the dis-
turbance should have been actually carried out if there has been a
tumultuous disturbance of the. peace.

Inciting Indians to Biotous Conduct. — Code sec. 109.

Biotous Destruction of Property. — Code sec. 96.

Biotous Damage to Property. — Code see. 97.

Sec. 3. — Unlawful Assemblies.

Definition. — Code sec. 87.
. Punishment. — Code sec. 89.

It has been held in New Brunswick that it is not a ground for
quashing a conviction for unlawful assembly on la certain day that
evidence of an unlawful assembly on another day has been improperly
received, if the latter charge was abandoned by the prosecuting coun-
sel at the close of the case, and there was ample evidence to sustain
the conviction. R. v. Mailloux, 3 Pug. 493.

Evidence of the conduct of the accused persons on the day pre-
vious to their alleged unlawful assembly is not admissible on their
behalf to explain or qualify their conduct at the time of the alleged
offenpe. Ibid.

438& RiotSj Etc. [book vi.

Unlawful Drillings. — Code sec. 98.

Attendance at Unlawful Drilling. — Code sec. 99.

Sec. i. — Affrays.

Definition. — Code see. 100.
Punishment. — Code sec. 100(2).

Sec. 6. — Suppression of Riots.

Suppression of Riots by Magistrate. — Code sec. 48.

Suppression of Riot hy Persons Commissioned Thereto. — Code
sec. 49.

Suppression of Riot by Persons Apprehending Serious Mischief. —
Code sec. 50.

Obedience to Superior Officer in Suppression of Riot. — Code
sec. 51.

Punishment of Rioters. — Code sec. 90.

Reading of Riot Act. — Code sec. 91.

Penalty for Preventing Proclamation and for not Dispersing. —
Code sec. 92.

Duty of Officers, and Indemnification if Rioters do not disperse. —
Code sec. 93.

Neglect of Peace Officers to Suppress Riot. — Code sec. 94.

Punishment for neglecting to aid Peace Officers. — Code sec. 95.

Limitation of Prosecution. — Code sec. 1140.

Military Force of the Crown. — Code sec. 167.

The procedure governing the calling out of the militia in aid of
the civil power is contained in the Militia Act, R.S.C. (1906) ch. 41,
sees. 80-90, inclusive.

(439)

CHAPTER THE SECOND.

OF CHALLENGING TO FIGHT.

The law does not recognise the right of two persons to agree to fight
or strike each other in a hostile manner with intent to wound or subdue
each other, consequently duels and prize fights are wholly illegal (a).

It is an indictable misdemeanor to challenge another, either by speech
or letter, to fight a duel, or to be the messenger of such a challenge, or
even barely to endeavour to provoke another to send a challenge, or to
fight ; as by dispersing letters for that purpose, full of reflections, and
insinuating a desire to fight (6). A duel in a public place is an affray (c) ;
and even in a private place it would seem if with seconds to be an un-
lawful assembly (d). It is no defence, though it may be a ground for
lighter punishment, to prove that the party challenging received
provocation ; for as, if one person should kill another, in a deliberate
duel, under the provocation of charges against his character and conduct
ever so grievous, it will be murder in him and his second, and, even
mere incitement to fight, though under provocation, is in itself a mis-
demeanor, though no actual breach of the peace ensue from the
challenge (e). Where, after a prisoner had been convicted, his brother
went to the house of the foreman of the jury, and challenged him to
mortal combat, it was held that this was a high contempt of the
Court before which the trial was held, and punishable as such (/).

The offence of endeavouring to provoke another to send a challenge
to fight is an indictable misdemeanor (g). In the case in which this was
decided the provocation was given in a letter containing hbellous matter,
and the prefatory part of the indictment alleged that the defendant
intended to do the party bodily harm, and to break the King's peace. The
sending such letter was held to be an act done towards the procuring the
commission of the misdemeanor meant to be accomplished (h). In such
a case where an evil intent accompanying an act is necessary to con-
stitute such act a crime, the intent must be alleged in the prefatory
or in some other part of the indictment ; but where the act is in itself
unlawful, the law infers an evil intent, and the allegation of such intent is

(a) R. V. Coney, 8 Q.B.D. 534, 553, 554, (h) The letter was : ' Sir,— It will, I con-

556, Hawkins, J. ; 563, Pollock, B. elude, from the description you give of your

(6) 1 Hawk. c. 63, s. 3. 3 Co. Inst. 158. feelings and ideas with respect to insult, in

4 Bl. Com. 150. Hick's case, Hob. 215. a letter to Mr. Jones, of last Monday's date,

{d) Ante, p. 422. whole of the Carmarthenshire election busi-

(e) R. V. Rice, 3 East, 581. ness, as far as it relates to me, you have

(/) R. V. Martin, 5 Cox, 356 (Ir.), Pigot, behaved like a blackguard. I shall expect

C.B., and Pennefather, B. to hear from you on this subject, and will

ig) R. V. Philipps, 6 East, 464. See also punctually attend to any appointment you

R. i>. O'Brien, Smith & Batty (Ir.K.B.) 79; may think proper to make.' See ante,

3 Chit. Cr. L. 848. For punishment, vide pp. 140, 203.

ante, p. 249.

440 Of Disturbances of the Public Peace. {book vi.

merely matter of form, and need not be proved by extrinsic evidence on
the part of the prosecution (i).

In substance the offences above stated are mere examples of the
general rule of law that it is a misdemeanor to incite another to commit a
criminal offence (/).

Mere words of provocation, as ' Har ' and ' knave,' though motives
and mediate provocation for a breach of the peace, yet do not tend imme-
diately to the breach of the peace, like a challenge to fight, or a threat
to commit a battery {h). But words directly tending to a breach of the
peace may be indictable ; as if one man challenge another by words ; {I)
and if it can be proved that the words used were intended to provoke
the party to whom they were addressed to give a challenge, the case
would seem to fall within the same rule (m).

Where a person wrote a letter with intent to provoke a challenge,
sealed it up, and posted it in Westminster, addressed to the prosecutor in
the city of London, by whom it was there received; EUenborough, C.J.,
held that the defendant might be indicted in Middlesex, as there was a
sufficient pubHcation in that county by putting the letter into the post-
office there with the intent that it should be delivered to the prosecutor
elsewhere ; and that if the letter had never been delivered, the defendant's
offence would have been the same (w).

Criminal informations for sending challenges have often been granted
in the High Court (o) ; but where it appeared, upon the affidavits, that the
party applying for an information had himself given the first challenge,
the Court refused to proceed against the other party by way of information
and left the prosecutor to his ordinary remedy by action or indictment (;p).
A rule to show cause why such an information should not be granted
has been made, upon producing copies only of the letters in which the
challenge was contained, such copies being sufficiently verified (q).

The punishment for this misdemeanor is fine and (or) imprisonment
without hard labour, at the discretion of the Court, which will be guided
by such circumstances of aggravation or mitigation as are to be found in
each particular case (r).

(i) K. u. Philipps, 6 East, 464, 470-475. (r) R. v. Rice, 3 East, 584. In that case

ij) Stepli. Dig. Cr. L. (6th ed.) p. 54n. the defendant (though he had undergone

ante, Bk. i. c. vi. p. 203. some imprisonment, and though there were

(A) William King's case, 4 Co. Inst. 181. several circumstances tending materially to

(I) B. V. Langley, 6 Mod. 125 ; 2 Ld. mitigate his offence) was sentenced to pay a

Raym. 1031. fine of £100, and to be imprisoned for one

(m) The rule given in 3 Co. Inst. 158, is calendar month, and at the expiration of

— Quando aliquid prohibetur, prohibetur et that time to give security to keep the peace

omne per quod devenitur ad illud. for three years, himself in £1000 and two

(») B. V. Williams, 2 Camp. 506. West- sureties in £250 each, and to be further im-

minster, then a liberty of Middlesex, is now prisoned till such fine was paid and such

an integral part of the county of London, securities given. Hawkins (1 P. C. c. 63,

which is still, for judicial purposes, distinct s. 21), speaking of the pernicious conse-

from the City of London. quence of duelling, says : ' Upon which

(o) The procedure is regulated by the considerations persons convicted of barely

Crown Office Rules, 1906. See r. 37. sending a challenge have been adjudged to

{p) R. V. Hankey, 1 Burr. 316, where it pay a fine of £100, and to be imprisoned

is said that the Court held that it might for one month without bail, and also to

have been right to have granted cross in- make a public acknowledgment of their

formations, in case each party had applied offence, and to be bound to their good

for an information against the other. behaviour.'

(}) R. a. Chappel, 1 Burr. 402.

( 440a )

CANADIAN NOTES.

OP CHALLENGING TO FIGHT.

Duels. — Code sec. 101.

Prize Fights. — Code sec. 104.

Principal in Prize Fight. — Code sec. 105.

Attending or Promoting. — Code sec. 106.

Leaving Canada to Engage in Prize Fig^t. — Code sec. 107.

When Fight is not Prize Fight. — Code sec. 108.

Discharge of Person after Failure to Give Sureties not to Engage
in Prize Fight. — Code sec. 1059.

A sparring match witli gloves, under Queensberry or similar rules
given merely as an exhibition of skill land without any intention to
fight until one is incapacitated by injury or exhaustion is not a "prize
fight" under Code sees. 105 and 2(31) ; to constitute a "prize fight"
there must have been a previous arrangement for a "fight" in the
ordinary sense of the term, and that involves an intention to continue
the encounter until one or the other of the combatants gives, in from
exhaustion or from injury received. R. v. Littlejohn, 8 Can. Cr. Cas.
212.

The defendants advertised a boxing exhibition which was effec-
tively held in a public hall, and was accompanied by all the particu-
lars and circumstances of a prize fight. Complainant submitted that
the accused came within the provision of the statute ; and on behalf of
the defendants it was contended that the encotmter was merely a
scientific boxing match, ' and, moreover, only a sham fight, not forbid-
den by law. Held, that as the proof adduced established that the en-
counter in question was accompanied by all the circumstances and
elements which constitute a prize fight, the defendants committed an
infraction of the law, for which they must be found guilty. Steele
V. Maber, 6 Can. Cr. Cas. 445.

(441 )

CHAPTER THE THIRD.

OF FORCIBLE BNTEY AND DETAINER.

Sect. I. — Common Law.

A FORCIBLE entry or detainer is committed by violently taking or keeping
possession of lands and tenements with menaces, force, and arms, and
without the authority of the law (a). At common law, and before the
passing of the statutes relating to this subject, if a man had a right of
entry upon lands or tenements, he was permitted to enter with force and
arms ; and to retain possession by force, where his entry was lawful (6).
And a person wrongfully dispossessed of his goods may justify the retaking
of them by force from the wrong-doer, if he refuses to redeliver them (c).
In many cases, however, an indictment will lie at common law for a
forcible entry if it contains not merely the common technical words,
' with force and arms,' but also if the facts charged shew actual force,
violence, unlawful assembly, riot, or other circumstances amounting
to something more than a bare trespass {d). In R. v. Wilson (e), Kenyon,
C. J., laid it down that no one may with force and violence assert his own
title. But on a subsequent day of the same term he said that the Court
wished that the grounds of their opinion in that case might be understood,
and that it might not be considered as a precedent in other cases to which
it did not apply. He then proceeded : ' Perhaps some doubt may here-
after arise respecting what Mr. Serjeant Hawkins says (/), that at common
law the party may enter with force into that to which he has a legal title.
But without giving any opinion concerning that dictum one way or the
other, but leaving it to be proved or disproved whenever that question

(a) 4 Bl. Com. 148. 7 T. R. 431, the entry made waa by the

(6) 13 Vin. Abr. 379. Dalt. Just. 297. landlord's putting his cattle on the ground

Lamb. 135. Crom. 70 a, b. 2 Hawk. o. 64, after the expiration of the tenant's term,

ss. 1, 2, 3. Bao. Abr. tit. ' Forcible Entry and was entirely peaceable ; but Kenyon,

and Detainer.' C. J., said : ' If the landlord had entered

10 C. B. (N. S.) 713, 721, where the servants by force, he might have been indicted for a

of the owner of land were held justified in forcible entry.' In Turner v. Meymott,

taking from a stranger game unlawfully 1 Bing. 158 ; 7 Moore (C. P.), 574, where

killed on the land. the landlord had broken into an empty

{d) B. V. Balfe, 3 Burr. 1731. R. v. house after the expiration of the tenant's

Bathurst, Say. 225, referred to in R. v. term, but before the tenant had delivered

Storr, 3 Burr. 1699, 1702. In R. v. Wilson, up possession, it was held that as against

8 T. R. 357, an indictment charging the the tenant he had a right to enter ; but

defendants (twelve in number) with having Dallas, C.J., said : ' If he has used force,

unlawfully and with a strong hand, entered, that is an offence of itself, but an offence

&o., was held good. Vide ante, Bk. i. u. ii, against the public for which, if he had done

p. 16, as to mere trespass not being in- wrong, he may be indicted.'

dictable. (/) 1 Hawk. o. 64, s. 1,

(e) 8 T. R. 361. In Taunton v. Costar,

442 Of Disturbances of the Public Peace. [book vi.

shall arise, all that we wish to say is, that our opinion in this case leaves
that question untouched : it appearing by this indictment that the
defendants unlawfully entered, and therefore the Court cannot intend
that they had any title ' {g). There is now no doubt that a party may
be guilty of a forcible entry by violently, and with force, entering into that
to which he has a legal title {h). But where a breach of the peace is com-
mitted by a freeholder, who, in order to get into possession of his land,
assaults a person wrongfully holding possession of it against his will,
although the freeholder may be liable to indictment for a forcible entry,
he is not civilly liable to the person wrongfully holding possession {i).

Sect. II. — Under the Statutes of Forcible Entry.

Whatever may be the true doctrine upon this subject at common law,
the statutes which have been passed respecting forcible entries and
detainers are clearly intended to restrain all persons from having re-
course to violent methods of doing themselves justice ; and it is the
more usual and effectual method to proceed upon these statutes, which
give restitution and damages to the party aggrieved.

By a statute of 1381 (5Eich. II. stat. 1, c. 7) (j), ' The King def endeth
that none from henceforth make any entry into any lands and tenements,
but in case where entry is given by the law, and in such case not with
strong hand, nor with multitude of people, but only in peaceable and
easy manner. And if any man from henceforth do to the contrary,
and thereof be duly convict, he shall be punished by imprisonment of
his body, and thereof ransomed {h) at the King's will.' This statute
gave no speedy remedy, leaving the party injured to proceed by indict-
ment (?) ; and made no provision at all against forcible detainers. By a
statute of 1391 (15 Rich. II. c. 2), it is enacted, that if complaint of forcible
entry into lands and tenements, or other possessions whatsoever, ' cometh
to the justices of peace or to any of them, the same justices or justice take
sufficient power of the county, and go to the place where such force is
made ; and if they find any that hold such place forcibly after such entry
made, they shall be taken and put in the next gaol, there to abide convict
by the record of the same justices or justice, until they have made fine

(g) 8 T. R. 364. further. Lows v. Telford, 1 A.C. 414.

(A) In Newton v. Harland, 1 M. & Gr. Butcher v. Batcher, 7 B. & C. 399. HiEary

644, Ckjurt of Cbmnion Pleas seems to have v. Gay, 6 C. & P. 284. Davison v. Wilson,

been of opinion that a landlord who entered 11 Q.B. 890. Burling v. Read, 11 Q.B.

forcibly into the house of a tenant after the 904. Pollen v. Brewer, 7 C. B. (N. S.) 371.

expiration of his term, would be guilty of R. v. Studd, 14 L. T. (N. S.) 633. Taylor

a forcible entry, both at common law and v. Cole, 3 T. R. 295.

under the statutes ; and the only doubt (i) Harvey v. Bridges, supra, Parke, B.

was whether, supposing there was such a (j) C. viii. in Ruffhead's edition,

forcible entry upon a tenant after the ex- (k) i.e., fine at the discretion of the

piration of the term, the possession thereby Court.

obtained was legal. There has been con- (I) There is no civil remedy given by the

siderable discussion as to whether Newton statute for the forcible entry (BeddaU v.

V. Harland is good law on the question Maitland, 17 Ch. D. 174, Fry, J.), although

whether an action lay for the forcible entry. such a remedy is available for independent

This is denied in Harvey v. Bridges, 14 M. wrongful acts, e.g., assault (Newton v. Har-

& W. 437 ; Blades v. Higgs, 10 C. B. (N. S.) land, 1 M. & G. 644), or damage to furni-

713 ; Beddall v. Maitland, 17 Ch. D. 174; ture (BeddaU v. Maitland, ijihi sup.). But

and in Smith, L.C. (11th ed.) 138, 139, See see Jones v. Foley [1891], 1 Q.B. 730,

CHAP. III.] Of Forcible Entry and Detainer. 44:3

and ransom to the King [m) : and that all the people of the county, as well
the sherifEs as other, shall be attendant upon the same justices to go and
assist the same justices to arrest such offenders upon pain of imprison-
ment, and to make fine to the King. And in the same manner it shall be
done of them that make such forcible entries in benefices or offices of holy
church.' This statute gave no remedy against those who were guilty of
a forcible detainer after a peaceful entry (w), nor against those who were
guilty of both a forcible entry and forcible detainer, if they were removed
before the coming of a justice of peace (o), and it gave no power to the
justices to restore the party injured to his possession, and did not impose
any penalty on the sheriff for disobeying the precepts of the justices in
the execution of the statute (p).

It was, therefore, found necessary to provide by a statute of 1429
(8 Hen. VI. c. 9), after reciting the above defects of the Act of 1391, that
it should be confirmed and extended to forcible detainers, and it was
enacted as follows : —

' Though that such persons making such entry be present or else
departed before the coming of the justices or justice, notwithstanding
the same justices or justice, in some good town next to the tenements so
entered, or in some other convenient place, according to their discretion,
shall have or either of them shall have authority and power to inquire,
by the people of the same county, as well of them that make such forcible
entries into lands and tenements as of them which the same hold with
force ; and if it be found before any of them that any doth contrary to this
statute, then the said justices or justice shall cause to re-seise the lands
and tenements so entered or holden as afore, and shall put the party
so put out in fuU possession of the same lands and tenements so entered
or holden as before.' After making provision concerning the precepts of
the justices to the sheriff to return a jury to inquire of forcible entries, the
qualification of the jurors {q), and the remedy by action against those who
obtain forcible possession of lands, &c., the statute enacts, that ' mayors,
justices or justice of peace, sheriffs and bailiffs of cities, towns, and bor-
oughs (»•), having franchise, have in such cities, &c., like power to remove
such entries and in other articles aforesaid, rising within the same, as the
justices of peace and sheriffs in counties.' The statute concludes with a
proviso that ' they which keep their possessions with force in any lands
and tenements, whereof they or their ancestors, or they whose estate they
have in such lands and tenements, have continued their possessions in the
same by three years or more, be not endamaged by force of this statute.'
This proviso is further confirmed by an Act of 1588 (31 Eliz. c. 11), which
enacts that ' no restitution, upon any indictment of forcible entry, or
holding with force, be made to any person or persons, if the person or
persons so indicted hath had the occupation, or hath been in quiet pos-
session, by the space of three whole years together, next before the day

(m) As to imposing and levying fines (p) Ibid,

under this statute, see 1 Hawk. c. 64, s. 8, and (?) These qualifications are abolished by

the cases collected in Bac. Abr. tit. 'Forcible the Juries Act, 1825 (6 Geo. IV. u. 50).

Entry and Detainer' (A.) in the notes. (r) This gives borough quarter sessions

(re) See recital of 8 Hen. VI. c. 9. jurisdiction over forcible entry and de-

(o)_Ibid, tainer.

444 Of Disturbances of the Public Peace. [book vi.

of such indictment so found, and his, her, or their estate or estates therein
not ended or determined ; which the party indicted shall and may allege
for stay of restitution, and restitution to stay until that be tried, if the
other will deny or traverse the same ; and if the same allegation be tried
against the same person or persons so indicted, then the same person or
persons so indicted to pay such costs and damages to the other party
as shall be assessed by the judges or justices before whom the same shall
be tried ; the same costs and damages to be recovered and levied as is
usual for costs and damages contained in judgments upon other actions.'

Summary Jurisdiction. — The Act of 1391 (15 Eich. II., c. 2), gives
magistrates jurisdiction to convict summarily on their own view in cases
of forcible detainer only where there had been a previous forcible entry,
so that, notwithstanding that statute, a party who had acquired the
possession of lands peaceably but unlawfully, could detain them forcibly
without incurring any criminal liability (s). 8 Hen. VI. c. 9 gives justices
summary jurisdiction only in cases of forcible detainer, preceded by an
unlawful entry, and therefore a conviction by justices on that statute
merely stating an entry and a forcible detainer is insufficient (t).

Summary convictions under the statutes were at all times rare, and
the parties usually sought restitution by indictment (u). On these statutes
it has been held, that if a lessee for years or a copyholder is ousted, and
the lessor or lord disseised, and such ouster, as well as disseisin, is found
in an indictment of forcible entry, the Court may, in their discretion,
award restitution of the possession to the lessee or copyholder ; which
was, by necessary consequence, a re-seisin of the freehold also, whether
the lessor or lord had desired or opposed it. But it was disputed whether
a lessee for years or a copyholder, ousted by the lessor or lord, could have
a restitution of their possession within the equity of 8 Hen. VI., c. 9, the
words of which are, that the justice ' shall cause to re-seise the lands,' &c.,
by which it seems to be implied that the party must be ousted of an
estate whereof he may be said to be seised, which must at least be a
freehold. To remove this doubt, 21 Jac. I. c. 15 enacted that such
judges, justices, or justice of the peace as by reason of any Act of
Parliament then in force were authorised and enabled upon inquiry
to give restitution of possession to tenants of any estate of freehold
of their lands, &c., entered upon by force or withholden by force, shall
have the like authority (upon indictment of such forcible entry or
forcible withholding before then duly found) to give like restitution of
possession to ' tenants for term of years, tenants by copy of Court roll,
guardians by knight's service, tenants by elegit, statute merchant and
staple.' A tenant by the verge has been held not to be within this statute :
but this decision has been questioned ; as such person, having no other
evidence of his title than the copy of Court roll, seems at least to be
within the meaning, if not within the words, of the statute (■;;).

If a lessor ejects his lessee for years, and is afterwards forcibly pnt
out of possession again by such lessee, he cannot obtain a restitutiou

{«) K. V. Oakley, 4 B. & Ad. 307. v. Joliffe, 3 Sess. Gas. 116.

(t) Id. ibid. See B. v. Wilson, 1 A. & E. (a) E. v. Wilson, 3 A. & E. 817, 829,

627. R. V. Wilson, 3 A. & E. 817 ; and as Denman, C.J.

to the form of such a conviction, Attwood (v) 1 Hawk. c. 64, s. 17,

CHAP. Ill] Of Forcible Entry and Detained. 445

under the statutes : but a justice of peace, it would seem, may remove
the force, and commit the offender (w).

The law upon these statutes may be further considered with reference —
I. To the persons who may commit the offence, infra.
II. To the nature of the possessions in respect of which it may be
committed, p. 446.

III. To the acts which will amount to a forcible entry, p. 446.

IV. To the acts which amount to a forcible detainer, p. 448.

The principle of the statutes is to require resort to the Courts by
persons seeking to enforce a right of entry on land, unless they are in
a position to enter in a peaceable and easy manner (x).

Where the person who has the legal title to land is in actual possession,
any attempt to eject him by force falls within the statutes of forcible
entry. This rule applies even if the possession has only just begun, or
has been acquired by forcing open a lock, and even where the ejector
sets up a claim to possession {y).

And a licence by tenant to landlord to eject him without legal
process has been held void, as in effect or licence to break the statutes
(5 Rich. II. St. 1, c. 7) {z).

I. A man who forcibly enters into a tenement of which he is the sole
and lawful possessor, e.g., who breaks open the doors of his own dwelling-
house, or of a castle, which is his own inheritance, but forcibly detained from
him by one who claims the bare custody of it, is not guilty of a forcible
entry or detainer within the statutes {a). A wife was indicted with
others for a forcible entry into a house, which she had taken for herself,
but of which her husband had afterwards, with the landlord's consent,
obtained possession, and it was objected that a wife could not be guilty
of a forcible entry into the house of her husband. Tenterden, C.J.,
said : ' although a wife certainly cannot commit a trespass on the property
of her husband, I am by no means satisfied that, if she comes with strong
hand, she may not be indictable for a forcible entry, which proceeds on
the breach of the public peace . . . ' ' As at present advised I think
she may be guilty of a forcible entry, if her entry was made under cir-
cumstances of violence amounting to a breach of the public peace ' (6).
A joint tenant or tenant in common may offend against the statutes
either by forcibly ejecting or forcibly keeping out his co-tenant ; for
though the entry of such a tenant is lawful fer my et per tout, so that he
is not liable to an action of trespass at common law, yet the lawfulness of
his entry does not excuse the violence, or lessen the injury, done to his
co-tenant ; and, consequently, an indictment of forcible entry into a
moiety of a manor, &c., is good (c). Where a man has been long in posses-
sion of land under a defeasible title, and a claim is made by him who has

(w) 1 Hawk. 0. 64, ss. 17, 18. the possession of his own tenant at will.

{x) Lows V. TeKord [1876], 1 A.C. 414, It would seem that forcible entry, even

426. And of. Harvey v. Bridges, 14 M. & against a tenant at wUl, is indictable within

W. 442. the statutes. See R. v. Wilson, 8 T. R.

ly) Edwiok v. Hawkes, 18 Ch. D. 199, 357, 364. Taunton v. Costar, 7 T. R. 431.

212, Fry, J. Turner v. Meymott, 1 Bing. 158. Lows v.

(2) Edwick V. Hawkes, 18 Ch. D. 199. Telford [1876], 1 App. Cas. 414. Beddall

la) Bac. Abr. tit. ' Forcible Entry, &o., v. Maitland, 17 Ch.D. 174.
(D). 1 Hawk. c. 64, s. 32, where it is (&) R. v. Smyth, 1 M. & Rob. 155 ; 5 C.

queried whether a man will be within the & P. 201. And see Doe v. Daly, 8 Q.B. 934.
statutes who forcibly enters into land in (c) 1 Hawk. o. 64, s. 33.

446 Of Disturbances of the Public Peace. [booK vi.

a right of entry, if the wrongful possessor continues his occupation, he
will be punishable for a forcible entry and detainer ; because all his estate
was defeated by the claim, and his continuance in possession afterwards
amounts in the judgment of law to a new entry {d). It does not follow
from the decision in R. v. Oakley (e) that 8 Hen. VI. c. 9, does not apply
to the case of a tenant at will or for years, holding over after the will
is determined or term expired, because the continuance in possession
afterwards may amount in judgment of law to a new entry (/).

II. A person may be guilty of forcible entry into ecclesiastical
possessions, as churches, vicarage houses, &c. (g). And as a general rule,
a person may be indicted for forcible entry into any incorporeal here-
ditament for which a writ of entry would lie, either by the common law, as
for rent, or by statute, as for tithes, &c. It is, however, questioned
whether there is any good authority that such an indictment will lie
for a common or office ; though it seems agreed that an indictment of
forcible detainer lies against any one, whether he be the tenant or a
stranger, who forcibly disturbs the lawful proprietor in the enjoyment of
such possessions ; as by violently resisting a lord in his distress for a rent,
or by menacing a commoner with bodily hurt, if he dares to put in his beasts
into the common, &c. No one comes within the statutes by violence offered
to another in respect of a way, or other easement which is no possession.
And it seems that a man cannot be convicted, upon view, under 15 Rich.
II. c. 2, of a forcible detainer of any incorporeal hereditaments wherein
he cannot be said to have made a precedent forcible entry (h).

L. was mortgagee in fee of a dwelling-house, the possession being
left in the mortgagor. The mortgagor whUe in possession let the house
to T. for a goods store. It was otherwise unoccupied. Early one morning,
during the continuance of T.'s tenancy, L., without giving any notice
to the mortgagor or to T., went to the house, in company with a carpenter
and another man. The carpenter opened the front door, and the other
man entered the house. L. and the carpenter remained on the doorstep,
the latter being employed in putting on a new lock. While this was
happening, T., and his brother-in-law, W., with several other persons
came up, and T. and W. climbed into the house through a window,
and after a slight struggle expelled L. and his men from the premises.
L. indicted T. and W. and others for a forcible entry, riot, affray, and
assault. T. and W. were tried and acquitted. They defended them-
selves by the same solicitor, and incurred joint costs. T. and W. then
brought an action against L. for malicious prosecution, and obtained a
verdict. It was held in the House of Lords that there was reasonable
and probable cause for the prosecution, inasmuch as the facts shewed
t}iat T. and W. were, at the time of the expulsion of L., disturbing a
possession which had been lawfully acquired by him {i).

(d) 1 Hawk. 0. 64, s. 34 ; Crom. 69 ; but vide ante, p. 445, note (a).

Co. Lit. 256. (g) See the terms of 15 Rich. 11. c. 2,

(e) 4 B. & Ad. 307, ante, p. 444. ante, p. 442, and Baude'a case, Cro. Jao. 41.
(/) 4 B. & Ad. 307, 312, Parke, J. In (h) 1 Hawk. o. 64, s. 31. Bac. Abr. tit.

R. V. Bathurst, Say. 225, it is said that ' Forcible Entry, &o.' (C). But see 13 Vin.

forcible entry on lands in possession of a Abr. 381.

tenant at will is not within the statute: (i) Lows v, Telford, 1 App. Cas. 414.

eUAp. ill] Of Forcibte Entry and Detainer. 44?

III. A forcible entry must be with a strong hand, coming with a
multitude of people or any excessive number of persons, or with unusual
weapons, or with menace of life or limb ; it must be accompanied with
some circumstances of actual violence or terror ; and an entry which
has no other force than such as is implied by the law in every trespass
is not within the statutes {j). An entry may be forcible not only in respect
of a violence actually done to the person of a man, as by beating him if he
refuses to relinquish his possession ; but also in respect of any other
violence in the manner of the entry, as by breaking open the doors of a
house, whether any person be in at the time or not, especially if it be a
dwelling-house {h), and perhaps also by any act of outrage after the entry,
as by carrying away the party's goods, &c., which if found in an assize of
novel disseisin, made the defendant a disseisor with force, and liable to
fine and (or) imprisonment (Z). It is a forcible entry for a man to enter by
force to distrain, for arrears of rent, because, though he does not claim
the land itself, yet he claims a right and title out of it, which by the statutes
he is forbidden to exert by force. But if a man who has a rent is
resisted from his distress with force, this is a forcible disseisin of the
rent, for which he may recover treble damages in an assize, or may fine
and imprison the party ; but he cannot have a writ of restitution ; for
the statutes do not give the justices power to reseise the rent, but only
the lands and tenements themselves (m). If one finds a man out of his
house, and forcibly keeps him out of it, and sends persons to take peace-
able possession of it in the party's absence, this seems to be a forcible
entry {n). And there may be a forcible entry where any person's wife,
children, or servants, are upon the lands to preserve the possession ;
because whatever a man does by his agents is his own act ; his posses-
sion is not preserved by having his cattle on the ground, because they
are not capable of being substituted as agents (o).

Whenever a man, either by speech or conduct, at the time of entry,
gives those in possession of the tenements, which he claims, just cause
to fear that he will do them some bodily hurt, if they will not give way to
him, his entry is deemed forcible ; whether he causes such a terror by
carrying with him an unusual number of servants, or by arming himself
in such a manner as plainly indicates a design to back his pretensions
by force, or by actually threatening to kill, maim, or beat those who
shall continue in possession, or by giving out such speeches as plainly
imply a purpose of using force against those who shall make any resist-
ance {f). It is not necessary that any one should be assaulted ; for it is
sufficient if the entry is with such number of persons and show of force
as is calculated to deter the rightful owner from sending them away, and
resuming his own possession {q). But forcible entry is not proved by

(j) Bao. Abr. tit. ' Forcible Entry, &c.' ground that no violence was done to the

(D.) 1 Dalt. 293 ; 1 Hawk. c. 64, s. 25. house, but only to the person of the party.

(k\ R. V. Bathurst, Sayer, 225. (o) Bac. Abr. tit. ' Forcible Entry, &e.'

(l)' 1 Hawk. c. 64, s. 26. R. v. Jopaon, (B.). Taunton v. Costar, 7 T. R. 431, ante,

3 Burr. 1702 cit. p. 441 note (e). Turner v. Meymott, 1 Bing.

(m)Bao.Abr.tit.'ForcibleEntry,&e.'{B.). 158.

(n) 1 Hawk. o. 64, s. 26, where it is given (p) 1 Hawk. u. 64, 3. 27.

as the author's opinion ; and contrary (q) Milner v. Maclean, 2 C. & P. 17,

opinions are noticed proceeding on the Abbott, C.J.

448 Of Disturhances of the Public Peace. [book vl

evidence of a mere trespass, there must be proof of such force, or at
least such a show of force, as is calculated to prevent any resistance (r).
' If one enters peaceably, and when he is come in useth violence, this is
a forcible entry' (s). Thus, if a man enters peaceably, yet if he turns
the party out of possession by force, or frightens him out of possession
by threats, it is a forcible entry (t). But threatening to spoil the party's
goods, or destroy his cattle, or to do him any like damage, which is not
personal, if he will not quit the possession, seems not to amount to a
forcible entry (m).

If a person who pretends a title to lands, merely goes over them,
either with or without a great number of attendants, armed or unarmed,
in his way to the church, or market, or for a like purpose, without doing
any act which either expressly or impliedly amounts to a claim of the
lands, he does not ' enter ' within the meaning of the statutes ; otherwise
if he make an actual claim with any circumstances of force or terror (v).
Drawing a latch and entering a house seems not to be a forcible entry (w),
e.g., if a man opens the door with a key, or enters by an open window,
or if the entry is without the semblance of force, as by coming in peace-
ably, enticing the owner out of possession, and afterwards excluding him
by shutting the door, without other force (x).

A single person may commit a forcible entry as well as a number (y).
But all who accompany a man when he makes a forcible entry are deemed
to enter with him, whether they actually come upon the lands or not (z).
So, if several come in company where their entry is not lawful, and all,
except one, enter in a peaceable manner, and that one only uses force,
it is a forcible entry in them all, because they came in company to do
an unlawful act ; but it is otherwise where one had a right of entry, for
there they only come to do a lawful act, and therefore it is the force
of him only who used it (a). And a person who barely agrees to a forcible
entry made for his benefit, but without his knowledge or privity, is not
within the statutes, because he did not concur in or promote the force (6).

IV. Forcible detainer is where a man, who enters peaceably, after-
wards detains his possession by force ; and the same circumstances of
violence or terror which will make an entry forcible, will also make a
detainer forcible. It seems to follow that whoever keeps in his house an
unusual number of people, or unusual weapons, or threatens to do some
bodily hurt to the former possessor, if he dare return, is guilty of a forcible
detainer, though no attempt is made to re-enter ; and it has been said
that he also wiU come under the like construction who places men at a
distance from the house in order to assault anyone who shall attempt
to make an entry into it ; and that he is in like manner guilty who shuts

(r) R. V. Smyth, 5 C. & P. 201, Tenter- upon this point. Beade v. Orme, Noy,

den, C.J. 136 ; Bao. Abr. tit. ' Forcible Entry, &o.'

(«) Vin. Abr. xm. 380, approved by (B.) ; 1 Hawk. u. 64, s. 26.
Fry, J., in Edwiok v. Hawkes, 18 Ch.D. (a;) Com. Dig. tit. ' Forcible Entry, &c.'

199,211. (A.) 3. '

(«) Bao. Abr. tit. ' Forcible Entry, &o.' {y) Id. (A.) 2. 1 Hawk. c. 64 » 29.

(B.) ; Dalt. 299. (z) 1 Hawk. c. 64, s. 22.

(a) 1 Ck). Inst. 257 ; Bro. tit. ' Duress,' (o) Bac. Abr. tit. ' Forcible Entry &c.'

12, 16 ; 1 Hawk. c. 64, b. 28. (B.). '

{v) 1 Hawk. c. 64, ss. 20, 21. (i) 1 Hawk. o. 64, s. 24.

(w) There hav6 been different opiniOn8

CHAP. III.] Of Forcible Entry and Detainer. 449

his doors against a justice of peace coming to view the force, and obstin-
ately refuses to let him come in (c). This doctrine will apply to a lessee
who, after the end of his term, keeps arms in his house to oppose the
entry of the lessor, though no one attempt an entry ; or to a tenant at
will detaining with force after the wUl is determined {d) : and it will
apply in like manner to a detaining with force by a mortgagor after the
mortgage is foreclosed. And a lessee who resists with force a distress
for rent, or forestalling or rescuing the distress, is also guilty of this
offence (e).

But a man is not guilty of the offence of forcible detainer if he merely
refuses to go out of a house, and continues therein in despite of another (/).
So that it is not a forcible detainer if a lessee at will, after the determina-
tion of the will, denies possession to the lessor when he demands it ;
or shuts the door against the lessor when he would enter ; or if he keeps
out, by force, a commoner upon his own land (gr). And 8 Hen. VI. c. 9,
and 31 Eliz. c. 11 (h), do not apply to a person who has been in possession for
three years by himself, or any other under whom he claims. But a
person in quiet possession for three years, and then disseised by force,
and restored, cannot afterwards detain with force within three years
after his restitution ; for his possession was interrupted (i).

The criminal remedies against persons guilty of forcible entries or
detainers are either by complaint to justices of the peace (who may proceed
upon view), or by indictment at quarter sessions (/). And if a forcible
entry or detainer is made by three persons or more, it is also a riot ; and
may be proceeded against as such, if no inquiry has before been made
of the force (A). Some of the points which have been determined with
respect to an indictment for these offences, and also concerning the
award of restitution, may be shortly noticed (Z).

Indictment. — The statutes seem to require that the entry should
be laid in the indictment to be with a strong hand (manu forti), or cum
multitudine gentium (m) : but some have held that equivalent words
would be sufficient, especially if the indictment concluded contra formam
statuti ; but it was held not sufficient to say only that the party entered
vi et armis since that was the common allegation in every trespass (n).
No particular technical words are necessary in an indictment at common
law ; all that is required is, that it should appear by the indictment that
such force and violence have been used as constitute a public breach of
the peace (o).

id) See R. v. Oakley, 4 B. & Ad. 307, {k) Bum's Just. tit. ' Forcible Entry and

312, Parke, J. Detainer,' VII. Ante, p. 409 et seq.

(e) Com. Dig. tit. ' Forcible Detainer " [1) As to the proceedings by justices of

(B.) 1. peace, see Burn's Just. tit. ' Forcible Entry,

(/) 1 Hawk. c. 64, s. 30. &o.,' V. Com. Dig. tit. ' Forcible Entry '

ig) Com. Dig. tit. ' Forcible Detainer ' (D.).
(B.) 2. (w) See R. v. Bathurst, Say. 225.

{h) Ante, p. 443. (") Baude's case, Cro. Jac. 41 ; 79 E. R.

(i) Com.' Dig tit. ' Forcible Detainer ' 34. Rast. Ent. 354. Bac. Abr. tit. ' Forc-

(B.) 2. ible Entry, &c.' (E.).

(j) See the statutes, ante, pp. 442-444. (o) R. v. Wilson, 8 T. R. 362, Lawrence,

Com. Dig. tit. ' Forcible Entry ' (C.) 4 Bl. J. R. <^. Bathurst, Say. 225.

Com. 148. Burn's Just. tit. 'Forcible
VOL. I.

450 Of Disturbances of the Public Peace. [book vi.

The tenement in which the force was committed must be described
with such certainty as to inform the defendant of the particular charge
against him, and to enable the justices or sheriff to know how to restore
the injured party to his possession. Thus an indictment has been held
insufficient where it charged forcible entry into a ' tenement ' (p), which
may signify anything whatsoever wherein a man may have an estate of
freehold (q), or into a ' house or tenement ' (r), or into ' two closes of meadow
or pasture ' (s), or into ' a rood or half a rood of land ' (t), or ' into certain
lands belonging to such a house ' (u), or into such a house without shewing
in what town it lies (v), or into a tenement, with the appurtenances, called
Truepenny in D. (w). But an indictment for a forcible entry in unum
messuagium sive domum mansionalem, &c., is good, for these are words
equipollent (x). And an indictment for an entry into a close called H.'s
close, without adding the number of acres^ is good ; for here is as much
certainty as is required in ej ectment (y). And an indictment may be void as
to such part of it only as is uncertain, and good for so much as is certain :
thus an indictment for a forcible entry into a house and certain acres of
land may be qiiashed as to the land, and stand good as to the house (z).
Upon an indictment against a wife for a forcible entry into a house, which
she had originally taken in her own name, but into which her husband
had afterwards entered for the purpose of giving up possession to the
owner, the house is well described as the house of the husband (a).

An indictment on 8 Hen. VI. c. 9 (b), must state that the place was
the freehold of the party aggrieved at the time of the force (c) ; and if
founded on 21 Jac. I. c. 15 {ante, p. 444), it should state that he was at
such time a tenant for a term of years or otherwise entitled as mentioned
in that statute {d). An inquisition under 8 Hen. VI. c. 9, will not warrant
a justice in restoring possession, unless it sets forth the estate possessed
by the party in the property (e). But an indictment which charges that
the defendants forcibly entered into a messuage of one W. P., he the
said W. P. then and there being seised thereof, sufi&ciently avers the present
seisin of W. P. to warrant the Court in awarding restitution (/). But
in an indictment at common law, where the breach of the public peace
is the gist of the offence, and the prosecutor is not entitled to restitution
and damages, it appears to be sufficient to state only that the prosecutor
was in possession of the premises (g).

(p) 2 RoUe Eep. 46. 2 RoUe Abr. 80, (E.). 1 Hawk. o. 64, s. 37.

pi. 8. Wroth & Capell's oaae, 3 Leon. 102, (o) R. v. Smyth, 1 M. & Rob. 155.

4 Leon. 197. (6) Ante, p. 443.

(q) Co. Litt. 6a. (c) R. v. Dorny, 1 Ld. Raym. 210 ;

(r) 2 RoUe Abr. 80, pi. 4, 5. RoUe R. 334. 1 SaUi. 260. Anon. 1 Vent. 89; 2 Keb.

EUis's case, Cro. Jao. 634 ; 79 E. R. 546. 493. Hetl. 73. Latch. 109.

(«) 2 RoUe Abr. 81, pi. 4. {d) See R. v. Lloyd, Cald. 415. R. v.

(«) Bulst. 201. Wanirop, Say. 142. It is difficult to under-

{u) Farnam's case, 2 Leon. 186. Wroth stand what is meant by some of these oases.

& CapeU's case, ubi sup. Broke tit. ' Eoro- (e) R. v. Bowser, Dowl. D. Pr. R. 128,

ible Entry,' 23. Coleridge, J. ; Bac. Abr. tit. ' Forcible

(u) Farnam's case, 2 Leon. 186. Entry, &c.' (E.), where, and in 1 Hawk.

{w) 2 RoUe Abr. 80, pi. 7. c. 64, s. 38, see the cases on this subject

(x) EUis's case, Cro. Jac. 634 ; Palm. collected. And see also R. v. Griffith, 3

277. SaUj. 169.

(y) Bac. Abr. tit. ' Forcible Entry, &,c.' (/) R. v. Hoaro, 6 M. & S. 267. R. v.

(E.). 1 Hawk. c. 64, s. 37. DiUon, 2 Chit. (K.B.) 314.

(«) Bac. Abr. tit. ' Forcible Entry, &o.' (y) R. v. Wilson, 8 T. R. 357.

CHAP. III.] Of Forcible Entry and Detainer. 451

A repugnancy in setting forth the offence in an indictment on the
statutes is incurable : as where it is alleged that the party was possessed
'of a term of years, or of a copyhold estate,' and that the defendants dis-
seised him ; or that the defendants disseised J. S. of land then and yet
being his freehold, for such statement implies that he always continued in
possession ; and if so, it is impossible he could be disseised at all (h). An
indictment on 8 Hen. VI. c. 9, setting forth an entry and forcible detainer,
seems to be good, without shewing whether the entry was forcible or
peaceable : but it must set forth an entry ; for otherwise it does not
appear but that the party has been always in possession, in which case
he may lawfully detain it by force (i). It appears to be sufficient to state,
that the defendant on such a day entered, &c., and disseised, &c., with-
out adding the words then and there ; for it is the natural intendment
that the entry and disseisin both happened together (j). A disseisin is
sufficiently set forth by alleging that the defendant entered, &c., into
such a tenement, and disseised the party, without using the words ' unlaw-
fully,' or ' expelled,' for they are implied (k). But no indictment can
warrant restitution, unless it finds that the wrong-doer ousted the party
aggrieved, and also continues his possession at the time of the finding of
the indictment ; for it is a repugnancy to award restitution of possession
to one who never was in possession, and it is in vain to award it to one
who does not appear to have lost it (l).

It is said that if a bill, both for forcible entry and forcible detainer,
is preferred to a grand jury, and found ' not a true bill ' as to the entry
with force, and ' a true bill ' as to the detainer, it will not warrant an
award of restitution ; but is void, because the grand jury cannot find
a bill, true for part, and false for part, as a petit jury may (m).

Upon an indictment on 21 Jac. I. c. 15, or 8 Hen. VI. c. 9, whereby
restitution of the possession of lands entered upon by force, or holden by
force, may be awarded to the respective tenants thereof ; the tenant whose
land has been entered upon, or withheld by force, is a competent witness
for the prosecution (n).

On an indictment at common law, the prosecutor need only prove
peaceable possession at the time of the ouster (o). On an indictment
upon 8 Hen. VI. c. 9, seisin in fee must be shewn ; and on an indictment
founded on 21 Jac. I. c. 15, a tenancy for years or other term within
that statute must be shewn (p) ; but it seems that proof that the prose-
cutor held colourably as a freeholder or leaseholder will suffice ; and
that the Court will not, on the trial, enter into the validity of an adverse

{h) 1 Hawk. 0. 64, s. 39. Bao. Abr. not a ' true bill ' upon different parts of one

' Forcible Entry, &o.' (E.). and the same charge. See E. v. Fieldhouse,

(j) 1 Hawk. c. 64, „. 40. Bac. Abr. ibid. Cowp. 325.

See the statute, ante, p. 443. (re) 6 & 7 Vict. o. 85, and 14 & 15 Vict.

(/) Baude's case, Cro. Jac. 41 ; 79 E. E. c. 99. Before these Acts he was inoom-

34. 1 Hawk. c. 64, s. 42. petent. E. v. Williams, 9 B. & C. 549.

(A) Bac. Abr. ' Forcible Entry, &c.' (E.). E. v. Beavan, Ey. & M. 242.

(I) 1 Hawk. 0. 64, s. 41. (o) Talf. Dick. Q. S. 377.

(m) 1 Hawk. c. 64, s. 40. But this, it (p) E. v. Child, 2 Cox, 102. In this case

seems, does not apply to the case of differ- it is stated that the indictment was under

ent counts in the same indictment, but only 5 Eich. II. stat. 1, c. 7. It is a very loose

where the grand jury find ' a true bill ' and report.

2g2

452 Of Disturbances of the Public Peace. [book vi.

claim made by the defendant, which he ought to assert, not by force,
but by action (q).

Restitution may be awarded by the justice or justices before whom
an indictment of forcible entry or detainer is found : but by no other
justices, unless the indictment be removed by certiorari into the High
Court (King's Bench Division) ; and that Court, by the plenitude of
its power, can restore, because that is supposed to be implied by the
statute ; on the ground that whenever an inferior jurisdiction is erected,
the superior jurisdiction must have authority to put it in execution. So,
if an indictment be found before the justices of the peace at their quarter
sessions, they have authority to award a writ of restitution, because
the statute having given power to the justices or justice to reseise, it
may as well be done by them in court as out of it (r). It is laid down
in some books that the justices of Oyer and Terminer or General Gaol
Delivery, though they may inquire of forcible entries, and fine the parties,
cannot award a writ of restitution (s).

Restitution ought only to be awarded for the possession of tenements
visible and corporeal ; for a man who has a right to such as are invisible
and incorporeal, as rents or commons, cannot be put out of possession
of them, but only at his own election, by a fiction of law, to enable him
to recover damages against the person that disturbs him in the enjoy-
ment of them ; and all the remedy that can be desired against a force
in respect to such possessions is to have the force removed, and those
who are guilty of it punished, which may be done by 15 Rich. II. c. 2 (t).
And restitution is to be awarded only to the person found by the indict-
ment to have been put out of actual possession, and not to one who was
only seised in law (u). Upon the removal of the proceedings into the
High Court by certiorari, that Court may award a restitution discre-
tionally (v). And the same principle applies to a judge of assize upon
the finding of an indictment for forcible entry ; namely, that the pro-
ceedings being ex parte, a discretion may be exercised. Where, therefore,
an indictment for a forcible entry and detainer is found at the assizes,
it is in the discretion of the judge whether he will grant restitution or

(q) Per Vaughan, B., in R. v. Williams, as are specially limited to justices of peace.

Monmouth, 1828, and confirmed on a But in Com. Dig. tit. ' Fore. Entr.' (D. 5), it

motion for a new trial. Talt. Dickenson, is said that justices of gaol delivery may

377 ; and see Jayne v. Price, 5 Taunt. 326. award restitution upon an indictment

(r) Bac. Abr. tit. ' Forcible Entry,' (F.). before them: and Sav. 78 is cited: and

See Short and Mellor, Cr. Pr. (2nd ed.) afterwards id. (D. 7), it is said that restitu-

420, and for form of writ, ibid. 560. tion shall not be by justices of assize, gaol

(s) Id. ibid, and 1 Hawk. c. 64, s. 51, delivery, or justices of peace, if the indict-

where it is said that justices of oyer and ment was not found before them ; and 1 Hale,

terminer have no power either to inquire of 140, Dalt. c. 44, 131, are cited ; assuming

a, forcible entry or detainer, or to award here, as it should seem, that if the indict-

restitution on an indictment on the statutes, ment were found before justices of assize

because when a new power is created by and gaol delivery, they might award resti-

statute, and certain justices are assigned to tution : and see R. v. Harland, 8 A. & E.

execute it, it cannot regularly be executed 826, and R. v. Hake, note (a), to R. -u.

by any other ; and inasmuch as justices of WiDiams, 4 Man. & Ry. 483, where a judge

oyer and terminir have a commission en- at the assizes granted a writ of restitution,

tirely distinct from that of justices of peace, (t) 1 Hawk. c. 64, o. 45. Lamb. Just,

they shall not from the general words of their 153. Co. Lit. 323.

commission ad inquirendum de omnibus, (u) Lamb. Just. 153. Dalt. 304.

dkc, be construed to have any such powers (ti) R. v. Marrow, oas. temp. Hardw. 174.

CHAP. III.] Of Forcible Entry and Detainer. 453

not ; and if he refuse to grant it, the High Court will not inquire whether
he has exercised his discretion rightly, or grant a mandamus to the judge
to grant restitution {w). But in the case of local justices, who are to
go to the spot, and make inquiry by the inqvdsition of the jury, and
examination of witnesses ; if the jury find the facts, it is imperative on
the justices to grant restitution ; and the reason is that there has been
a fair inquiry {x).

It appears by the proviso in 8 Hen. VI. c. 9, and also by 31 Bliz. c. 11,
that any one indicted upon those statutes may allege quiet possession
for three whole years to stay the award of restitution : and it has been
held that such possession must have continued without interruption
during three whole years next before the indictment {y). And it must be
of a lawful estate, so that a disseisor can in no case justify a forcible entry
or detainer against the disseisee having a right of entry, as it seems that
he may against a stranger, or even against the disseisee having, by his
laches, lost his right of entry (2). Wherever such possession is pleaded
in bar of a restitution, either in the High Court or before justices of the
peace, no restitution ought to be awarded till the truth of the plea has
been tried. The plea need not shew under what title, or of what estate,
such possession was ; because not the title, but the possession only, is
material [a). If the defendant tenders a traverse of the force (which
must be in writing), no restitution ought to be tiU the traverse is tried ;
and the justice, before whom the indictment is found, ought to award a
venire for a jury : but if such jury find so much of the indictment to be
true as will warrant restitution, it will be sufficient, though they find
the other part of it to be false (6). "Where the defendant pleads three
years' possession in stay of restitution, under 31 Eliz. c. 11, and it is
found against him, he must pay costs (c).

The justices who have awarded a restitution on an indictment of
forcible entry, &c., or any two or one of them, may afterwards supersede
such restitution upon an insufficiency in the indictment appearing unto
them : but no other justices or Court whatsoever have such power,
except the High Court ; a certiorari from whence wholly closes the
hands of the justices of peace, and avoids any restitution which is executed
after its teste, but does not bring the justices into contempt without
notice (d).

On an equitable construction of the statutes, but on their express
words, it is considered that the High Court has discretionary power, if a
restitution shall appear to have been illegally awarded or executed, to
set it aside, and grant a re-restitution to the defendant. But a defendant
cannot in any case whatsoever, ex rigore juris, demand restitution,

(t«) R. V. Harland, 8 A. & E. 826 ; 1 P. (G.). 1 Hawk. u. 64, 3. .54.

& D. 93 ; 2 Man. & Ry. 141. See R. v. (a) 1 Hawk. c. 64, s. 56.

Hake, note (a) to R. v. Williams, 4 Man. (6) Bac. Abr. tit. ' Forcible Entry, &c.'

& Ry. 483, where a judge, upon such an (G.). 1 Hawk. c. 64, ss. 58, 59. R. v.

inquisition, granted a writ of restitution, Winter, 2 Salk. 588.

not as a matter of right, but in the exercise (c) R. v. Goodenough, 2 Ld. Raym. 1036.

of his discretion. And see the words o£ the statute, ante,

(x) Ibid. Patteson, J. p. 443.

(y) Bac. Abr. tit. ' Forcible Entry, &c.' {d) Bac. Abr. Id. ibid. 1 Hawk, o, 64,

(G.). 1 Hawk. c. 64, s. 53. ss. 61, 62.

(z) Bac. Abr. tit. ' Forcible Entry, &o.'

454 Of Disturbances of the Public Peace. [BooK VI.

either upon the quashing of the indictment, or on a verdict found for
him on a traverse thereof, &c. ; for the power is never made use of by
the High Court except when, upon consideration of the whole circum-
stances of the case, the defendant appears to have some right to the
tenements, the possession whereof he lost by the restitution granted to
the prosecutor (e).

Where a conviction for a forcible entry or detainer is quashed by
the High Court after restitution ordered, the Court is bound to award
re-restitution, although the conviction be quashed for a merely technical
error, and the lease of the dispossessed person has expired during the
litigation (/).

Where on a traverse of an indictment under the statutes, a man has
been found to have been unjustly put out of possession, the Court of
King's Bench has awarded re-restitution, notwithstanding proof that,
since the restitution granted upon the indictment, a stranger has recovered
the possession of the same land in a Manorial Coxurt {g).

The justices or justice may execute the writ of restitution in person,
or may make their precept to the sheriff to do it (A). The sheriff, if
need be, may raise the power of the county to assist him in the execution
of the precept ; and therefore, if he makes a return thereto that he
could not make a restitution by reason of resistance, he is liable to amerce-
ment (i). It is said, that a justice of peace or sheriff may break open a
house to make restitution (j).

If possession under a writ of restitution is avoided immediately
after execution by a fresh force, the party shall have a second writ of
restitution without a new inquisition ; but the second writ must be
applied for within a reasonable time [k). And an order of restitution
made three years after the inquisition, was quashed (?).

ss. 63, 64, 65. Dalt. 309. (h) 1 Hawk. u. 64, s. 59.

{/) R. V. Jones, 1 Str. 474. R. v. Wilson, (»') Id. ibid. s. 52. And see 50 & 51

3 A. & K. 817, 837. But in K. v. Harris, Vict. c. 55, ss. 8, 29.

1 Ld. Eayin. 482, it was said by Holt, C.J., (j) Com. Dig. tit. ' Forcible Entry, &o.'

that restitution is of right where the resti- (D.) 6.

tution was tortious, discretionary if the (k) R. v. Harris, 1 Ld. Raym. 440, 482,

restitution was just. a case of forcible entry into a rectory.

(y) Bac. Abr. Id. ibid. 1 Hawk. c. 64, (I) R. v. Harris, 3 Salk. 313.

( 454tt )

CANADIAN NOTES.

OF FORCIBLE ENTRY AND DETAINER.

Sec. 2. — Under the Statutes.

Definition of Forcible Entry. — Code sec. 102.

Definition of Forcible Detainer. — Code sec. 102(2).

Punishment of. — Code sec. 103.

"Entering" means not merely going upon land or trespassing
upon it; there must accompany the act of going upon the land some
intent to take possession of the land itself and- deprive the possessor
of the land. Such an interference with the possession as trespassing
upon it for the purpose of taking away chattels upon the land is not
an "entering" within the Code. R. v. Pike (1898), 2 Can. Cr. Cas.
314, 12 Man. R. 314.

Forcible entry of a dwelling house may consist of an entry made
with such threats and shew of force as would, if resisted, cause a
breach of the peace, although no actual force was used. R. v. Walker
(1906), 12 Can. Cr. Cas. 197, 4 O.L.R. 288.

Where, from thirty to forty employees of the G. W. Railway Co.~
went upon land then in possession of the S. & H. Railway Co., and those
resisting had good reason to apprehend violence in the event of further
resistance, and yielded possession in the apprehension of such violence,
it was held that the entry was a forcible one. R. v. Smith, 43 U.C.Q.B.
369.

The gist of the offence is the forcible depriving of the other's actual
and peaceable possession in a manner likely to cause a breach of the
peace. R. v. Cokely, 13 U.C.Q.B. 521. Even if the defendant had a
right of entry, the assertion of that right "with strong hand or with
multitude of people" is equally an offence as if he had no right.

It is within the discretion of the Judge who tries the cause either
to grant or refuse restitution. R. v. Wightman (1869), 29 U.C.Q.B.
211; R. V. Smith (1878), 43 U.C.Q.B. 369; R. v. Jackson, Draper's
Rep. Upper Canada 53.

( 455 )

BOOK THE SEVENTH.

OF OFFENCES AGAINST THE DUE ADMINISTRATION OF JUSTICE.

CHAPTER THE FIRST.

of perjury and cognate offences.

Sect. T. — Perjury in General.

Perjury is a misdemeanor indictable at common law (a). It consists
in giving upon oath, in {or for the purposes of) a judicial proceeding, before a
competent tribunal, whether it be a Court of the common law or acting
under a statute {aa) , evidence whioh is material to some question depending
on the proceeding and is false to the knowledge of the deponent, or is not
believed by him to be true (b) . The oath taken must be to swear the truth,
and the offence does not include breaches of the oath of a juror, or of
promissory oaths (c). ' Oath ' in this chapter includes affirmation and
declaration in cases where a witness is by law empowered or required to
affirm or declare instead of taking the witness's oath (d).

Perjury is not committed when the false evidence is given by a person
who is not a competent witness. Thus, before the Criminal Evidence
Act, 1898 (61 & 62 Vict. c. 36), if a defendant in a criminal case was
sworn, perjury could not be assigned on his evidence (e). Incompetence
may arise from a disqualification imposed by common law, e.g., of calling
a wife as a witness against her husband in a criminal case ; or by statute ;
or may, as in the case of young children, arise from inability to under-
stand the nature of the witness's oath. The witness must be sworn or
affirmed. The old averment was that he was ' sworn in due course of law,
and did then take his corporal oath upon the Holy Gospel of God ' (/).
But a witness may be convicted of perjury on an oath administered to him
in such form and with such ceremonies as he may declare to be binding (g),

(a) Be Rowland ap Eliza, 3 Co. Inst. 164. in civil oases. As to promissory oaths, see
{aa) R. v. Castro, 4 L.R.Q.B. 350, 357, 31 & 32 Vict. c. 72.

Blackburn, J. {d) See 52 & 53 Vict. u. 63, o. 3, ante,

(b) R. V. Aylett [1785], 1 T. R. 64, 69, p. 3 ; 52 & 53 Vict. o. 10, post, p. 461.
Lord Mansfield. Cf. 1 Hawk. c. 69, s. 1. (e) R. v. Clegg [1868], 19 L. T. (N. S.)47,
Com. Dig. tit. ' Justice o£ Peace ' (B.) 102. Hannen, J. Since that Act, the prisoner is
Bao. Abr. tit. ' Perjury.' indictable for perjury in evidence given by

(c) 1 Hawk. u. 69, s. 5. In 8 Hen. VIII. him for the defence. B. v. Baker [1895],
c. 9, s. 3, post, p. 525, reference is made to 1 Q.B. 797.

perjury by false verdict. As to the old (/) The words after 'law' were always

remedies in such a case, see Bushell's case superfluous. R. v. McCarther, Peake (3rd

[16701, 6 St. Tr. 999; Vaugh. 135 ; Selden ed.), 311.

Soc. Publ., Vol. 16, p. cxxxii. The present (g) 1 & 2 Vict. c. 108, s. 1, post, p. 456.

remedy is by appeal in criminal as well as Soils v. Hoare, 3 B. & B. 232.

456 Of Offences against the Administration of Justice, [book VII.

or upon solemn affirmation where he has no reHgious behef (h), or the
taking of an oath is contrary to his religious belief {i).

It does not matter whether the false evidence is given orally or on
affidavit, or in answer to interrogatories in an action, or concerning
a contempt, nor whether the oath was in the deponent's own cause, or in
that of another person, nor whether the evidence was given for the Crown
or for the defence in a criminal case [j). Nor does it matter whether the
false oath was believed or disbelieved, nor whether it caused any injury to
the person against whom it was given ; for the gist of the offence at common
law {h) is the abuse of public justice, and not the injury to an individual [1).

By the Oaths Act, 1838 (1 & 2 Vict. c. 105), ' in all cases in which an
oath may lawfully be and shall have been administered to any person either
as a juryman or a witness, or a deponent in any proceeding, civil or
criminal, in any Court of law or equity in the United Kingdom, or on
appointment to any office or employment, or on any occasion whatever,
such person is bound by the oath administered : provided the same shall
have been administered in such form and with such ceremonies as such
person may declare to be binding ; and every such person, in case of wilful
false swearing, may be convicted of the crime of perjury in the same
manner as if the oath had been administered in the form and with the
ceremonies most commonly adopted.'

This Act does not apply to affirmations or declarations in lieu of the
witness's oath. But such affirmations are permitted in the case of
Quakers and Moravians, and persons who have no religious belief, or a
religious belief which precludes their taking the witness's oath. The
statutes substituting affirmation for oath provide that a false affirmation
shall be punishable as perjury (m).

Unsworn Evidence. — By the Criminal Law Amendment Act, 1885
(48 & 49 Vict. c. 69), s. 4, ' upon the hearing of a charge under the section,
a child of tender years, who is tendered as a witness, does not, in the
opinion of the Court, understand the nature of an oath, but is possessed
of sufficient intelligence to justify the reception of the evidence, and
understands the duty of speaking the truth ; the evidence of such child
may be received, though not given upon oath. [Provided that any witness,
whose evidence has been admitted under this section, shall be liable,
in all respects, to indictment and punishment for perjury as if he or she
had been sworn] ' [mm).

Similar provision was made by sect. 15 of the Prevention of Cruelty

[h) 51 & 52 Vict. c. 46, s. 1. defence in treason and felony could not be

(i) 3 & 4 Will. ly. u. 49, B. 1 ; 1 & 2 sworn until 1 Anne, st. 2, o. 9, o. 3, which

Vict. u. 77, B. 1 (relating to persons who are also made their false swearing perjury,

or have been Quakers or Moravians) ; 51 (h) As to the Act of Elizabeth, vide -post,

& 52 Vict. c. 46, s. 1 (general). 3 & 4 p. 525.

Will. IV. c. 82 (Separatists), was repealed in {I) 1 Hawk. u. 69, a. 9. Bac. Abr. tit.

1890 (53 & 54 Vict. c. 33). As to the mode ' Perjury ' (A.). In B. v. NichoUs, Glouoes-

of ascertaining whether a witness is entitled ter Sum. Ass. 1838, coc. Patteson, J., the

to affirm, see R. v. Moore. Each of these prisoner had on the trial of one for larceny

Acts specifically puts false affirmations in sworn that he had not given the stolen

the same position as false oaths with property to P., but the jury disbelieved

respect to the penalties for perjury. him, and acquitted P., and he was convicted

(j) Perjury by a witness for the Crown of perjury. C. S. G.

was held to be criminal at common law (to) See the Acts post, Bk. xiii. c. v.

(3 Co. Inst. 164), but not under the Act of (mm) Words in brackets repealed as from

Elizabeth {post, p. 525). Witnesses for the April 1, 1909, by 8 Edw. VII. c. 67, s. 134.

cHaP. i.i Of Perjury. 45?

to Children Act, 1904 (4 Edw. VII. c. 15), as to offences under that Act
and offences named in the first schedule thereto. This continues in force
as to offences within sects. 2, 3 of the Act, but as to other offences is
superseded by sect. 30 of the Children Act, 1908 (8 Edw. VII. c. 67).
That section applies to offences against Part II. of the Act and named
in Schedule 1 (n), and provides, ' (6) Any child whose evidence is received
as aforesaid and who wilfully gives false evidence under such circum-
stances that, if the evidence had been given on oath, he would have
been guilty of perjury, shall, subject to the provisions of this Act, be
liable on summary conviction to be adjudged such punishment as might
have been awarded had he been charged with perjury and the case
dealt with summarily under section ten of the Summary Jurisdiction
Act, 18Y9' (42 & 43 Vict. c. 49) (nn).

Judicial Proceeding. — The oath must be taken either in a judicial
proceeding, or in some other public proceeding of the like nature, before
persons authorised by the King to examine witnesses on any matter
whatsoever (o). It is not material whether the Court, in which the oath
is taken, is a Court of record or not, or whether it is a Court of common
law, of equity, or of the civil law, or an ecclesiastical court (p), &c., nor
whether the oath is taken in the face of the Court, or out of it before
persons authorised to examine a matter depending in it, as before the
sheriff or his lawful deputy or under-sheriff, on a writ of inquiry, &c.,
or whether it is taken in relation to the merits of a cause, or in a collateral
matter, as, where one who offers himself to be bail for another, swears
that his substance is greater than it is (</).

There must be something in the nature of a judicial proceeding, e.g.,
an existing cause (r). But the oath may be the first step for initiating
the proceeding, e.g., swearing an information, or swearing an affidavit
in support of an ex parte motion, or swearing a petition in a divorce cause,
or an affidavit to support a summons to hold to bail (s). In the case of
perjury in an affidavit or the like, the offence is committed when the
deponent takes oath to the truth of the affidavit, and it is unnecessary
to aver or prove that the affidavit was filed or in any way used {t).

It is no defence that the affidavit, through defects in the jurat, cannot
be received in the Court for which it is sworn. Upon an indictment for
perjury, in an affidavit, it appeared that the affidavit was signed with
the mark of the defendant, and the jurat did not state either where it

[n) i.e. cruelty and offences against {p) See Plaice v. Howe, Cro. Eliz. 185.

persons under J.6, post, Bk ix. pp. 907 et seq. (q) 1 Hawk. c. 69, s. 3. Bac. Abr. tit.

{nn) There is no authoritative decision as ' Perjury ' (A.). R. w. Crossley, 7T. R. 315.

to the examination of a child on the voire (r) R. v. Pearee, 3 B. & S. 531, post,

dire before determining whether it may be p. 459. Before the Common Law Proce-

aUowed to give unsworn evidence. But dure Act, 1852 (15 & 16 Viot. c. 76, s. 152),

semble, that the child need not understand where an action had abated by the death of

the legal consequences of giving false evi- a co-plaintiff, and no suggestion had been

dence. R. v. Dent [1907], 71 J. P. 511, entered under 8 & 9 Will. III. c. 11, s. 6, a

Rentoul, Commissioner. trial was held extra-judicial, and perjury

(o) 1 Hawk. c. 69, s. 3. The old books could hot be assigned on false evidence given

speak of the proceedings as those wherein therein. R. v. Cohen, 1 Stark. (N. P.) 511.

the King's honour or interest are concerned, [s) King v. R., 14 Q.B. 31, which- turned

e.g., before commissioners appointed to on the Judgments Act, 1838 (1 & 2 Vict,

inquire of the forfeitures of his tenants, or o. 110).

of defective titles waiting the supply of the {t) R. v. Crossley, 7 T. R. 315. R. v.

King's patents. Phillpotts [1851], 2 Den. 302, post, pp. 467-9.

458 Of Offences against the Administration of Justice. [BOOK vil.

was sworn, or that the affidavit was read over to the party, and it was

proved by a clerk in the Master's office that where the party swearing an

affidavit cannot write, the jurat ought, after stating the place where it

was sworn, to state that the witness to the mark of the deponent had

been first duly sworn, that the person administering the oath had read

over the affidavit to the deponent, and saw the mark affixed ; and that

no affidavit would be received which did not contain this form of jurat

when the party could not write. Littledale, J., said : ' The omission

of the form directed by this and other Courts to be used in the jurat of

affidavits may be an objection to their being received in the Court, whose

rules and regulations the party has neglected to comply with ; but I am

of opinion that the perjury is complete at the time the affidavit is sworn,

and although it cannot be used in the Court for which it is prepared, that

nevertheless perjury may be assigned upon it ' (m). So where an affidavit

when sworn had been marked by the judge's clerk with his initials, but

through mistake had not been then presented to the judge for his signature,

but some days afterwards it was signed by the judge; Alderson, B., in

the presence of the other Barons of the Exchequer, expressed a clear

opinion that perjury might be assigned upon the affidavit, although the

judge's signature was omitted {v).

Upon an indictment for perjury, it appeared that the defendant had

filed a bill in chancery for an injunction, and had made the affidavit, on

which the perjury was assigned, in support of the allegations in that

bill. The indictment averred the bill to have been filed, and the affidavit

exhibited in support of it ; and stated the matters assigned as perjury to

be material to the questions arising on the bill ; but did not contain any

statement that a motion had been made for an injunction, nor did it

appear by the evidence that any such motion had in fact been made.

It was submitted that the defendant was entitled to an acquittal {w).

Tenterden, C. J., said : ' I do not think the averment or proof, the absence

of which is objected to, can be necessary. The statements in the affidavit

are material to the matters contained in the bill, which is for an injunction ;

and it may well have been filed in anticipation of a contemplated motion

for an injunction, on which it might have been used. Can it make any

difierence that it afterwards turns out that the motion is not made ? The

crime, if any, is the same, morally, in each case ; and I certainly shall not,

where the objection is open hereafter, hold it necessary to give proof of

a fact which does not vary the conduct of the party in taking the oath in

question' {x). An affidavit sworn for the purpose of being used in a cause,

but which is neither used nor filed, is nevertheless the subject of perjury (2/).

(u) R. V. Hailey, Ry. & M. 94 ; 1 C. & P. averment, therefore, that the perjury was

258. assigned on the matter material to the bill

(w) Bill V. Bament, 8 M. & W. 317. was not true ; it could only be material to

(to) By the practice of the Court of an application of a peculiar nature, and it

Chancery, an injunction could not be ob- did not appear, and was not alleged, that

tained, except for want of an answer, or on such an application was ever made. It

the insufficiency of the answer, or on evi- was answered that the objection, if tenable

dence disproving the answer, in none of at all, amounted to this, that perjury could

which cases was the affidavit of the plaintiff not be assigned upon an affidavit which

admissible ; or else ex parte before the time had not been used,

allowed to the defendant for answering has (a:) R. v. White, M. & M. 271.

elapsed. In the last case, and in that only, (y) Hammond v. Chitty, Q.B., E. T.

could the plaintiff's affidavit be used. The 1840, MSS. C. S. G.

CHAP. L] Of Perjury. 450

An indictment for perjury alleged that the defendant produced before
a Master in Chancery an affidavit, ' entitled, in the said Court of Chancery,
and in the said suit therein at the suit of the said E. J. C, and also in the
said suit therein at the suit of the said Commissioners of Charitable Dona-
tions and Bequests in Ireland.' The affidavit, when produced, appeared
to be entitled ' between the Commissioner (sic) of Charitable Donations
and Bequests in Ireland, against J. E. D., &c. (naming the other defend-
ants), and between E. J. C. and J. E. D., the Commissioners of Charitable
Donations and Bequests in Ireland, and others.' If was objected that
this affidavit was not one on which perjury could be assigned, as there
was no such suit as that in which the Commissioner of Charitable Bequests
was plaintiff ; and the affidavit was improperly entitled, as the names
of all the defendants were not stated, and therefore the affidavit was
not admissible in the Court of Chancery. Denman, C.J., said : ' The
Courts are quite right in not receiving affidavits which are not properly
entitled ; but I do not think the question whether there be perjury or
not depends on the rule as to entitling being strictly complied with ' {z).

In Amended Proceedings. — Where the powers of amendment of its
proceedings possessed by a Court are limited, after an amendment has
been made without jurisdiction the cause may be described as non-
existent (a), or subsequent proceedings as coram non judice : and perjury
cannot be assigned on a false oath taken therein (b). In the statutes
empowering the amendment of criminal proceedings it is expressly
provided that witnesses shall be indictable for perjury committed after
the amendments have been made (c). A proceeding is not the less
judicial because of some defect, falling short of absolute want of juris-
diction. Thus perjury may be assigned on evidence given in support
of an indictment for perjury, even though that indictment was subse-
quently held bad on the ground that it did not contain a sufficient
assignment of perjury (d).

Competent Jurisdiction.^The oath must be taken before a competent
jurisdiction, that is, before some person or persons authorised by English
law to take cognisance of the proceeding in or for which the oath is

(z) R. V. Christian, C. & M. 388, 393. In the name of her husband, having no juris-

R. V. Hudson, 1 F. & F. 56, where perjury was diction to make the amendment,

charged to have been committed in an aiifi- (c) 11 & 12 Vict. c. 46, s. 4 ; 12 & 13

davit of service of notice of an application Vict. c. 45, s. 10 ; 14 & 15 Vict. c. 100, s. 1,

for leave to issue execution against a share- post, Bk. xii. c. ii.

holder in a joint stock company, and the {d) R. v. Meek, 9 C. & P. 513, Williams,

affidavit was produced, but the notice was J. The former indictment, also for per-

not annexed to it ; Cookburn, C. J., held jury, had been held bad on a writ of error,

the affidavit inadmissible. Sed quaere. because the assignment of perjury was in-

(a) R. V. Hughes, 4 Q.B.D. 614, 628, sufficient. See R. v. Burraston, 4 Jur. 697,

Hawkins, J. post, p. 497. MuUett v. Hunt, 1 Cr. & M.

(6) R. V. Pearoe, 3 B. & S. 631 ; 9 Cox, 752, was cited in support of the objection

258. Approved by Hawkins, J., in R. v. in R. v. Meek. See also Davis v. Lovell,

Hughes, 4 Q.B.D. 614, 628. In R. v. 4 M. & W. 678. ' If judgment be arrested

Pearce, an unmarried woman having ob- in a civil action for a defect in the deolara-

tained a judgment in a county court, tion, it has never been said that that cir-

sought to enforce it in the City of London cumstance would prevent a witness, who

Court, and it appearing that she had mar- had been guilty of false swearing at the

ried since judgment, that Court (oonsti- previous trial, from being indicted for per-

tuted under 15 & 16 Vict. c. Ixxvii.) had jury.' R. v. Cooke, 2 Den. 462, 463,

amended the judgment summons by adding Pollock, C.B.

460 Of Offences against the Administration of Justice. [BOOit Vtt.

taken, and to administer the oath. Thus a false oath taken in a court
of requests, in a matter concerning lands, was held not to be indictable,
that Court having no jurisdiction in such cases (e). And perjury cannot
be assigned on an oath taken before persons acting merely in a private
capacity (/), or before those who take upon them to administer oaths
of a public nature, without legal authority for their so doing, or before
those who are legally authorised to administer some kinds of oaths,
but not those which happen to be taken before them, or even before
those who take upon them to administer justice by virtue of an authority
seemingly colourable, but in truth unwarrantable and merely void.
But a false oath taken before commissioners, whose commission at the
time was determined by the demise of the Crown, would be perjury, if
taken before the commissioners had notice of the demise {g).

Coke Qi) seems to have considered that the authority to administer
the oath must be derived from a commission recognised by the common
law, and doubts have often arisen as to the power of particular persons
to administer an oath on which perjury could be assigned. By sect. 16
of the Evidence Act, 1851 (14 & 15 Vict. c. 99), ' every Court, judge,
justice, officer, commissioner, arbitrator (i), or other person now or
hereafter having by law or hy consent of parties, authority to hear, receive,
and examine evidence, is hereby empowered to administer an oath to
all such witnesses as are legally called before them respectively.'

False evidence before the following tribunals is perjury : the superior
courts of law, including courts of assize, and courts of quarter sessions,
and of summary jurisdiction (;^'), county courts (A;), local marine boards (l),
naval courts-martial (m), revising barristers (n), grand juries (o), the
judicial committee of the Privy Council {p), registrars of the Admiralty

(e) Buxton v. Gouch, 3 Salk. 269. These tribunals were formerly regulated by

(/) 1 Hawk. 0. 69, s. 4, and authorities 17 & 18 Vict. u. 104, and 25 & 26 Vict. u. 63,

there cited. 4 Bl. Com. 137. This must s. 23. They are now governed by ss. 244,

be read subject to 14 & 15 Vict. c. 99, s. 16, 245 of the Merchant Shipping Act, 1894

infra. (57 & 58 Vict. c. 60), and by the Merchant

(g) Ibid. 4 Bao. Abr. tit. ' Perjury.' Shipping Act, 1906 (6 Edw. VII. o. 48).

The demise of the Crown does not deter- See s. 85.

mine any appointment or office ( 1 Edw. VII. (m) Common law. R. v. Heane, 4 B. &

e, 5). By 4 Will. &,M. c. 18, s. 6, pleas to S. 947. By the Naval Discipline Act (29

. information in the Court of King's Bench & 30 Vict. c. 109), s. 67, ' every person

are not affected by the demise of the Crown. who, upon any examination upon oath or

By 1 Anne, i;. 2, commissions of assize, oyer upon affirmation before any court-martial

and terminer, and gaol deUvery, and of the held in pursuance of this Act, shall wilfully

peace, continue in fuU force for six months and corruptly give false evidence, shall be

after the demise of the Crown, unless sooner deemed guilty of wilful and corrupt per-

superseded. Cf. 1 Edw. VII. c. 5, s. 1. jiiry, and every such offence, wheresoever

{h) 3 Co. Inst. 165. committed, shall be triable and punishable in

(i) See R. v. HaUett, 2 Den. 237, which England ; and where any such offence

related to an arbitration under the County committed out of England is tried in

Courts Act, 1846 (9 & 10 Vict. c. 95), s. 77 England, all statutes and laws, applicable

(rep.). It is perjury to give false evidence in to oases of perjury, shall apply to the case.'
an arbitration within the Arbitration Act, (m) 6 & 7 Vict. c. 18, s. 41 (E) ; 13 & 14

1889 (52 & 63 Vict. c. 49), s. 22, or under Vict. u. 69, s. 56 (I). The offence is in R.

the Agricultural Holdings Act, 1908 (8 v. Thornhill, 8 C. & P. 575, treated as per-

Edw. VII. c. 28), s. 13 (5). jury at common law.

(/) Common law and the commissions of (o) 19 & 20 Vict. c. 54, s. 1 (E) ; and

the judges and justices. common law (see R. v. Hughes, 1 C. & K.

(*) R. V. Morgan, 6 Cox, 107, Martin, B. 519) ; 56 Geo. III. c. 87, s. 2 ; and 1 & 2

And see R. v. Crossley [1909], 1 K.B. 411. Vict. o. 37, s. 2 (I).

[l) R. V. Tomlinson, L. R. 1 C. C. R. 49. (p) 3 & 4 Will. IV. e. 41, s. 9.

CHAP. I.] Of Perjury. 461

Court {q), of vice-admiralty courts (r), and of county courts in admir-
alty (s), matrimonial courts (<), probate courts (m), proceedings to wind-
up companies {v), commissioners to inquire into corrupt practices at
elections {w), committees of either House of Parliament {x), and the
court of referees on private bills {y), judges on Irish and Scotch private
estate bills {z), and the taxing officers in either House {a), and ecclesias-
tical courts (6), including the statutory church discipline courts (c).

There are numerous other enactments making false swearing before
particular tribunals and in particular cases perjury or punishable as
perjury (d). The only one of sufficient importance to be here set out is
the Commissioners for Oaths Act, 1889 (52 & 53 Vict. c. 10), which by
sect. 7 enacts that, ' Whoever wilfully and corruptly swears falsely in
any oath or affidavit (e) taken or made in accordance with the pro-
visions of this Act, shall be guilty of perjury in every case where if
he had so sworn in a judicial proceeding before a Court of competent
jurisdiction he would be guilty of perjury.'

This enactment extends to all affidavits taken in England for use
in Courts in England (/), and also to oaths taken abroad for the purpose
of a cause or matter in England, or the registration of a document in
England, if taken before a British diplomatic or consular officer acting
there, or a person having power to administer an oath there [g).

By sect. 9, any offence under this Act, whether committed within or
without His Majesty's dominions, may be tried in any county in the
United Kingdom in which the person charged was apprehended, or is
in custody.

Provision is also made for punishing as perjury oaths taken before
commissioners or tribunals appointed to take evidence for proceedings
in other Courts, whether of the United Kingdom (A), British dominions {i),
or foreign states (/).

Bankruptcy Courts. — In E. v. Lloyd (A), a conviction of perjury in

(q) 24 & 25 Vict. o. 10, s. 26. in this Act includes statutory declarations,

(r) 26 & 27 Vict. o. 24, s. 20. and is framed so as to put sworn evidence

(s) 31 & 32 Vict. c. 71, s. 19. taken before a commissioner in the same

(t) 20 & 21 Vict. 0. 85, a. 50 (E) ; 33 & position as it had been given in Court.
34 Vict. c. 110, 3. 25 (I). (/) As to County Courts, see 51 & 52

(u) 20 & 21 Vict. e. 79, s. 32 (I). Vict. c. 43, s. 83 ; 53 & 54 Vict. c. 7, s. 1.

(v) 8 Edw. VII. 0. 69, s. 218. (q) 52 & 53 Vict. c. 10, ss. 3, 6.

(w) 31 & 32 Vict. c. 125, s. 31 ; 45 & 46 (Ji) 55 Geo. III. o. 157, ss. 8, 9, taking

Vict. 0. 50, £j. 94. affidavits, &c., in England or Scotland for

(x) 21 & 22 Vict. 0. 78, s. 3 (Lords) ; Irish Courts.
34 & 35 Vict. 0. 83, s. 1 (Commons). The (i) 42 Geo. III. c. 85, s. 5 (evidence for

latter Act applies also to witnesses sworn prosecutions in England of pubhc officials

at the bar of the House. . • for offences abroad). 1 WiU. IV. c. 22, s. 7

(y) 30 & 31 Vict. c. 136, s. 2. (examinations of witnesses in Colonies for

(z) 41 Geo. III. c. 105, s. 1 (S, I). proceedings in superior Courts in England).

(a) 10 & 11 Vict. 0. 69, s. 5 (Commons) ; 22 Vict. c. 20, s. 2 (evidence for British

12 & 13 Vict. 0. 78, s. 5 (Lords). tribunals). 44 & 45 Vict. c. 69, s. 32

(6) Vide Plaice v. Howe, Cro. Eliz. 185 ; (evidence for British tribunals in criminal

78 E. R. 441. cases).

(o) 3 & 4 Vict. c. 86, s. 18 (discipluie) ; (/) See 19 & 20 Vict. c. 113, s. 3 (for civil

48 & 49 Vict. c. 54, s. 7 (pluralities) ; 55 or commercial causes in foreign tribunals).

& 56 Vict. c. 32, s. 10 and Sched. 36 & 37 Vict. o. 60, s. 5 (for criminal pro-

(d) See Chronological Index to Statutes, ceedings in foreign tribunals),
tit. ' Perjury.' (fe) 19 Q.B.D. 213.

(e) The definition of oath and affidavit

462 Of Offences against the Administration of Justice, [book vii.

an examination ' by the Court,' under sect. 27 of the Bankruptcy Act,
1883, was quashed on the ground that there had been no valid examination
by the Court, inasmuch as the registrar in bankruptcy, before whom
the examination was to be held, after administering the oath, had left
the room (1).

Deputy Judges. — The question whether perjury can be assigned on
evidence taken before the deputy of a judicial officer, depends on whether
the deputy is lawfully appointed and acting. In the case of false
swearing before a deputy coroner, acting in the absence of the coroner,
it appears to be for the judge who tries an indictment for perjury to
determine whether the occasion which entitled the coroner to appoint a
deputy had arisen (m).

Justices of the Peace. — Where perjury is assigned on an oath taken
before a justice of the peace it must be shewn that he had jurisdiction
to deal with the matter in which the oath was taken. When he has
jurisdiction to take evidence he can take it on oath (n). Where a charge
is made in the presence of the accused (o), as to a matter in which the
justices have jurisdiction, who is then and there called upon to answer
it, as he lawfully may be according to the dictum of Lord Holt (p) . . .
' itis . . . altogether immaterial, so far as the jurisdiction of the justices
to hear the charge is concerned, whether the accused was before them
voluntarily or otherwise, or on legal or illegal process ' (q). The Indictable
Offences Act, 1848, and the Summary Jurisdiction Acts regulate the
formalities to be observed when a charge is made against an absent
person whose presence before the justices it is desired to procure (r) :
but unless a statute specifically requires it, the laying of an information in
writing, or on oath, is not a condition precedent to his exercise of juris-
diction (s), and statutes providing for informations on oath, unless in very

{I) In R. V. Weatley, Bell. 193, and R. v. (p) That a conviction upon an informa-

Dunn, 12 Q.B. 1026, questions were raised tion instanter is legal. R. v. Fuller, 1 Ld.

as to the jurisdiction to administer the oath Raym. 509.

under insolvency Acts now repealed, viz. (g) R. v. Hughes, 4 Q.B.D. 614, 629,

1 & 2 Vict. c. 110, s. 8 ; 5 & 6 Vict. Hawkins, J.

cc. 116 & 122; and 7 & 8 Vict. o. 96. (r) At common law, warrants to arrest

(m) R. V. Johnson, L. R. 2 C. C. R. 15, appear to be illegal unless obtained on

decided on 6 & 7 Vict. o. 83, s. 1 (rep.). R. sworn information. R. v. Heber, 2 Bar-

V. Schlesinger, 10 Q.B. 670. The appoint- nard (K.B.) 101.

ment and jurisdiction of deputy-coroners (s) R. v. MiUard, Dears. 166 ; 22 L. J.

is regulated by the Coroners Act, 1892 M. C. 108, Parke, B., decided on 7 & 8

(55 & 56 Vict. 0. 56) ; of deputy county Geo. IV. o. 30, s. 30, repealed in 1861, and

court judges by 51 & 52 Vict. c. 43, s. 18 re-enacted as s. 62 of the Malicious Damage

(see R. V. Roberts, 14 Cox, 101 (C. C. R.) : Act, 1861. See also R. i-. Shaw, 34 L. J.

R. V. Lloyd [1906], 1 K.B. 552) ; of deputy M. C. 169, Erie, C.J. Turner v. Postmaster

recorders by 45 & 46 Vict. o. 50, s. 75, General, 5 B. & S. 756. R. v. Hughes, 4

and 6 Edw. VII. o. 46 ; and of deputy Q.B.D. 614, where the subject is exhaus-

stipendiary magistrates by 6 Edw. VII. tively discussed, and the contrary dictum

0. 46. As to perjury before a deputy or of Lord Mansfield (R. v. Fearshire, 1 Leach

under-sheriff, see R. v. Dunn, 2 Mood. 202) is rejected. R. «. Scotton, 5 Q.B. 493, is

297 ; 1 C. & K. 730, 732n. explained in R. v. Hughes, ubi supra, as

(re) At common law and under 14 & 15 turning on the special language of 6 & 7

Vict. c. 99, s. 16, ante, p. 460. As to extra- Will. IV. c. 65 (rep.), which required the

judicial matters, his power of administering charge to be deposed to on oath before any

oaths is limited by 5 & 6 Will. IV. c. 62, proceedings were taken, &c. In Blake v.

B. 13. Vide ' Voluntary Oaths,' ante, p. Beech, 1 Ex. D. 320, the conviction seems

325. to have been quashed for irregularity, not

(o) See R. v. Stone, 1 East, 649, Kenyon, for want of jurisdiction.
O.J.

CHAP. I.] Of Perjury. 463

special terms, are read as merely giving cumulative powers in order to
compel the attendance of an absent person, or to enable a case to proceed
ex parte if he does not appear.

' There is a marked distinction between the jurisdiction to take
cognisance of an offence and the jurisdiction to issue particular process
to compel the accused to answer it ' {t).

This is recognised by sect. 17 of the Indictable Offences Act, 1848
(11 & 12 Vict. c. 42), which provides for conducting a preliminary
inquiry, even in cases where a prisoner is brought before a justice
withoiit warrant on a charge of an indictable offence. And even where
a man is illegally brought before justices upon a charge as to which
they have jurisdiction (m), if he does not demand his release (whether
from ignorance of the illegality or other cause), but proceeds with his
defence, he is treated as having waived his objections, and witnesses
who swear falsely at the hearing are liable to indictment for perjury {v).

H., a constable, was indicted for perjury, committed on the hearing of a
charge against S. for assault upon H., and for obstructing him in the
discharge of his duty. The first charge made was for an offence against
24 & 25 Vict. c. 100, s. 38, and on that charge the evidence was given,
but the justices summarily convicted under 34 & 35 Vict. c. 112, s. 12.
On the trial of H. it was objected that he could not be convicted because
the magistrates had no jurisdiction to hear the charge of assault, and
therefore perjury could not be committed on the hearing. No written
information or oath had been made before the issue of the warrant
upon which S. had been brought before the justices ; but H. took no
objection to this although he defended himself on the merits, and called
a witness on the facts. It was held that, although the warrant was
illegal, the false oath taken by H. was perjury, because it was
taken before justices who were competent to entertain the charge of
assault, and had jurisdiction in respect of time and place over
the offence. On a case reserved the conviction was af&rmed {w).
Hawkins, J., said : ' I am of opinion that the conviction was
right, and ought to be affirmed. In arriving at this opinion I have
assumed as a fact, from the case as stated, that S. was arrested and
brought before the justices upon as illegal a warrant as ever was issued, —
a warrant signed by a magistrate not only without any written information
or oath to justify it, but without any information at all. . . . Wrongful,
however, as were the proceedings by which S. was brought into the
presence of the magistrates to answer a charge which up to that moment
had never been legally preferred against him ; before those magistrates
and in his presence a charge was made over which, if duly made, they
had jurisdiction. Upon that charge it was that the hearing proceeded ;
and in support of that charge it was that the defendant was sworn, and

(t) E. V. Hughes, 4 Q.B.D. 614, 624, 1848. There seems to have been no infor-
Hawkins, J. mation, but K. had appeared, heard and
(u) Ibid. pp. 622, 623. answered the charge, and the perjury
(v) R. V. Shaw, 34 L. J. M. C. 169, Black- assigned was committed by a witness
burn, J. In that case there had been a called for the defence. See also R. v. Mil-
conviction of perjury on proceedings lard, 22 L. J. M. C. 108 ; R. v. Smith, L. R.
against K., under 18 & 19 Vict. c. 118, 1 C. C. R. 110.
which were regulated by the S. J. Act, (w) R. v. Hughes, 4 Q.B.D. 614.

464 Of Offences against the Administration of Justice, [book vii.

in giving his evidence swore corruptly and falsely.' In the view of the
Court it was immaterial to the charge of perjury whether the judgment
given by the justices on the evidence was legal or illegal, so long as they
had jurisdiction to hear evidence on the charge made.

Under 7 & 8 Vict. c. 101, s. 2 {x), an application for an order in
bastardy must be made to the justices acting for the petty sessional division
in which the mother ' may reside ' ; and they had no jurisdiction to
entertain such an application, unless she did reside within their division,
and consequently, if she did not so reside, perjury could not be committed
on such an application {y).

Upon an indictment for perjury upon the hearing of an application by
M. H. for an order upon the prisoner for the maintenance of her bastard
child, it appeared that the summons was issued by a magistrate on the
application of M. H., who stated, but not on oath, that she had been
delivered of a bastard child more than twelve months previous, and
that money had been paid by the prisoner for its maintenance within
twelve months of its birth. The summons alleged that the prisoner had
' paid money for its maintenance within twelve months after its birth,'
instead of stating that proof thereof had been made. The prisoner
appeared personally in answer to the summons, and was assisted by an
attorney. No objection was made to any of the proceedings on which
the summons was founded, and the case was gone into on the merits
before the stipendiary magistrate, before whom M. H. swore to the payment
of money as alleged, and the prisoner swore that he had never paid M. H.
any money. It was objected that, as there had been no proof on oath
of money having been paid for the maintenance of the child within twelve
months from its birth hefore the summons was issued, the magistrate
had no jurisdiction to hear the case ; but, upon a case reserved, it was
held that the prisoner had waived the objection. Proceedings to obtain
an aflfiliation order are not criminal but civil in character, taken
to impose a pecuniary obligation, and the summons is mere process to
bring the defendant into Court(2). Before the summons issued there ought
to have been evidence on oath of the payment of the money, although
it was not expressly required by the statute to be on oath, as in the case
of a complaint made before the birth of the child. Further, the summons
should have been in the form given by the statute ; but even assuming
that, if the prisoner had not appeared, the magistrate could not have
lawfully proceeded to hear evidence of the paternity ; or that, if he had
appeared, and objected to the regularity of the summons, the objection

[x) Bepealed, but in substance re- her parents' house to the justices' meeting

enacted in 1872 (35 & 36 Vict. c. 65, ss. 2, of the division in which her parents resided.

3). After the order she went into service with-

(y) R. V. Hughes, D. & B. 188. The out returning home. The jury found that
mother of the child was delivered in March, she had no other home than D., and that
and resided with her parents till November, she was residing at D., if in point of law she
She then went and lodged at D. in another could under the circumstances be con-
petty sessional division for three weeks, and sidered to be so. It was held that the
then applied to the justices of that division, justices had jurisdiction to make the order.
Her lodging there was not for any improper as her residence was at D.
or fraudulent purpose, but because the jus- (z) The proceedings to enforce a bas-
tices met in the town, and it was more con- tardy order when default is made, are quasi
venient for her than to go a distance from criminal. 42 & 43 Vict. o. 49 s. 54.

CHAP. l.j Of Perjury^ 465

ought to have prevailed ; yet when he actually appeared, and instead
of objecting to the regularity of the summons, asked the Court to give
judgment in his favour on the merits, and tendered evidence to absolve
himself from liability, he waived any irregularity in the process, and
when he had thus submitted himself to the jurisdiction of the Court, the
Court had jurisdiction to hear and decide the case (a).

The same principle has been adopted in the case of a bastardy summons
issued before the birth of the child without the deposition required by
7 & 8 Vict. c. 101 (b). Where a bastardy summons is applied for within
the statutory period, twelve months, but not issued till after it has
elapsed, the justices have jurisdiction to hear the proceedings (c).

Upon an indictment for perjury, it appeared that the perjury had
been committed upon the hearing of a second application for a bastardy
order, a former application having been heard by the magistrates and
dismissed upon the merits. It was contended that the magistrates
were fundi officio after the first application had been dismissed on the
merits, and had no jurisdiction to entertain the second application. But
it was held that the magistrates had jurisdiction to hear the second
application and administer an oath, even if the previous dismissal were
a defence (d).

On a trial for perjury alleged to have been committed on the hearing
of an information for refusing to quit licensed premises, it was held that
proof of the existence of the licence was necessary to shew that the
justices had jurisdiction (e).

An indictment alleged that Home was duly licensed to keep a beer-
house, and that an information had been laid against him for that he,
being duly licensed to keep a beer-house, had it open unlawfully on the
morning of Sunday, February 6, 1853, and charged the defendant with
falsely swearing that he had not been supplied with beer in the house
on that morning. Home's licence was for a year, commencing on May 11,
1853, but Home was keeping the beerhouse on the February 6
previously. It was objected that the averment that Home was duly
licensed on February 6 was not proved, and that if he was not so licensed,
the justices had no jurisdiction to hear the information. But Crompton,
J., held that the justices had jurisdiction generally over the subject of
keeping houses for the sale of beer and other liquors open on Sunday ;
and that as, in order to establish an offence, it was not necessary to prove
that the keeper of the house was licensed, what was sworn on the subject
of Home's keeping the house open brought the case within the jurisdic-
tion of the justices, even if it turned out that he was not licensed at the
time (/).

By 4 Geo. IV. c. 34, s. 2 (rep.), all complaints arising between masters
or mistresses and their apprentices, as to wages, &c., might be heard
and determined before a justice of the peace. After an apprenticeship

(a) R. V. Berry, Bell. 46, Martin, B., diss. Lewis, 12 Cox, 163. R. v. WUlis, 12 Cox,

Of. R. V. Simmonds, Bell. 168. 164. These decisions seem to have been

(6) R. V. Fletcher, L. R. 1 C. C. R. 320. doubted in R. v. Lakin, March 10, 1900,

(d) R. V. Cooke,' 2 Den. 462. See R. v. (/) R. </. Kirton, 6 Cox, 393, Crompton,
Brisby, 1 Den. 416. J.

(e) R. V. Evans, 17 Cox, 37. Cf. R. v.

VOL. I. 2 H

466 Of Offences against the Administration of Justice, [book Vii.

was over, tlie former apprentice summoned his late master under this Act
for wages alleged to be unpaid, and on the hearing swore falsely. It
was held that this was perjury, inasmuch as the magistrate had jurisdiction
to determine whether the relation of apprenticeship continued or not (g).

Justices have no jurisdiction to inquire into the truth of a charge of
libel preferred before them, or to hear any other justification (h), except
in cases within sect. 4 of the Newspaper Libel and Registration Act,
1881 (44 & 45 Vict. c. 60). If publication is proved, they are bound to
commit for trial. Where, therefore, an indictment was preferred for
perjury alleged to have been committed in the course of the cross-examina-
tion of a witness for the defendant on a charge of libel before magistrates,
the object of which was to prove the truth of the libel, the Court directed
an acquittal (i).

Materiality.— The essence of perjury is its tendency to mislead a
Court in proceedings relative to a matter judicially before the Court (/).
Consequently the false evidence must be relevant to a question already
raised, or to be raised, in the proceeding ; for if it is wholly foreign
from the purpose, or altogether immaterial, and neither in any way
pertinent to the matter in question, nor tending to aggravate or extenuate
the damages, nor likely to induce the jury to give the readier credit to
the substantial part of the evidence, it cannot amount to perjury, because
it is wholly idle and insignificant ; as, where a witness introduces his
evidence, with an impertinent preamble of a story concerning previous
facts, not at all relating to what is material, and is guilty of a falsity as to
such facts (k).

If it appears plainly that the scope of the question to a witness was
to sift him as to his knowledge of the substance, by examining him strictly
concerning the circumstances, and he gave a particular and distinct,
but wilfully false, account of the circumstances, he is guilty of perjury,
inasmuch as nothing can be more apt to incline a jury to give credit to the
substantial part of a man's evidence, than his appearing to have an
exact and particular knowledge of all the circumstances relating to it (I).
And a witness may be guilty of perjury in respect of a false oath concern-
ing a mere circumstance, if such oath have a plain tendency to corroborate
the more material part of the evidence ; as if, in an action of trespass for
spoiling the plaintiff's close with the defendant's sheep, a witness swears

ig) B. V. Sanders, L. R. 1 C. C. R. 76. that time, but in answer to the judge said,

(h) R. V. Garden, 5 Q.B.D. 1. that the prisoner had lived in the same

(j) R. V. Townsend, 10 Cox, 356, Monta- house for the two years previous, and that

gue Smith, J. The judge held that the during the whole of that time he had not

cross-examination was not upon a matter been absent from the same house for more

material to the crime. But the decision than three nights together. The last two

can be better justified on the ground that statements were proved to be false, as the

the justices had no power to enter on the prisoner for a whole year of the period

inquiry at all. spoken to had been in prison. Held, that

(?) 1 Hawk. 0. 69, s. 3. the evidence so last given was material to

{k) R. V. Griepe, 1 Ld. Raym. 256. Allen the inquiry, and the proper subject of as-

V. Westley, Hetley, 97. Bac. Abr. tit. signments of perjury, inasmuch aa those

' Perjury ' (A.). See 2 Rolle, 41, 42, 369. latter statements tended to render more

1 Hawk. c. 69, _s. 8. probable the previous statements made,

(I) Upon an indictment for robbery com- that the prisoner was at home on the night

mitted on April 13, between eight and ten of April 13. R. v. Tyson, L. R. 1 0. C. R.

o'clock at night, a witness for the prisoner 107. See R. u. Naylor, U Cox' 13 •" R. v.

swore, not only was the prisoner at home at Alsop, 11 Cox, 264. ' ' '

CHAP, i.] Of Perjury. 467

that he saw such a number of the defendant's sheep in the close ; and
being asked how he knew them to be the defendant's, swears that he knew
them by such a mark, which he knew to be the defendant's mark, whereas,
in truth, the defendant never used any such mark (m). And it is not
necessary to. shew to what degree the false evidence was material to the
issue, but it is enough that the point was circumstantially material (n).
And still less is it necessary that the evidence should be sufficient for
the plaintifi to recover upon, since evidence may be very material, and
yet not conclusive upon, nor even directly probative of the point in
question (o). Where A. advanced money to B. on two distinct mort-
gages, upon one of which the security was insufficient, and B. assigned the
equity of redemption in both to C, who assigned the insufficient estate
to an insolvent, and filed a bill against A. to redeem the other, to which
bill A. put in his answer, and therein denied having had notice of the
assignment to the insolvent ; it was held that the notice was a material
fact upon which perjury might be assigned (p).

Materiality is not limited to direct relevance to the issues raised, or to
be raised (q), in the proceeding for the determination of the tribunal, or
to the principal judgment to be given (r). Thus, perjury may be assigned
on evidence given to enable a judge to decide whether a document is
admissible (s), or by a person who offers himself as bail for another, as
to his possessing the necessary qualifications (t). Whether false swearing
in a judicial proceeding with intent to mislead is not punishable, when it
is wholly irrelevant and immaterial to the issue that is being tried, has
not been judicially determined (u).

Upon the trial of Doe d. Richard v. Griffiths, a copy of the will of
W. J. was tendered, and on objection to its admissibility. P., who was then
attorney for the lessor of the plaintiff, swore that he had examined the
copy produced with the original will in the registry at Llandaff. Upon
further objection that the original will was inoperative in respect of a
chattel interest, and that, therefore, either the probate ought to be pro-
duced or the Act Book be proved, P. further deposed that he had examined
the memorandum at the foot of the copy of the will, with the entry in
the Act Book at the same registry. Upon this evidence the judge offered
to receive the document in evidence, but the plaintiff's counsel withdrew
it. P. was indicted for perjury. It was proved that he had not made
either of the examinations to which he had deposed, and he was con-
victed. Erie, J., reserved the question, whether the false oath was relevant

(m) Bac. Abr. tit. ' Perjury ' (A.). 1 case arose on an application to rcBcind a

Hawk. c. 69, s. 8. See R. v. Gardiner, post, commission to examine witnesses' issue

P- 501. after writ but before the defendant's

{n) E. V. Griepe, 1 Ld. Raym. 256. R. appearance. It had been urged that a

V. Musoot, 10 Mod. 195. commission should not go tiU issue was

(o) R. V. Rhodes, 2 Ld. Raym. 886. joined in the cause, as tiU this, perjury

(jj) R. V. Pepys, Peake, 138 (3rd edit, could not be assigned in the depositions.

187), Kenyon, C.J. (r) 1 Hawk. c. 69, s. 3. R. v. MuUany,

{q) In Finney v. Beesley [1851], 17 Q.B. L. & 0. 593.

86 ; 20 h. J. Q.B. 96, Campbell, C. J., said : (s) R. v. Phillpotts, 2 Den. 302.

' I do not agree that there could be no {i) R. v. Royson, Cro. Car. 146.

indictment for perjury where the examina- [u] See R. v. MuUany, L. & C. 593, 596,

tion of the witness has taken place before Erie, C.J. ; and per Maule, J., in R. v. Phill-

issue joined, if his evidence would be ma- potts, 2 Den. 302, 306.

terial to the issue afterwards joined.' The

2h2

468 Of Offences against the Administration of Justice. tBOoK Vll.

and material to the issue then being tried, so as to amount to perjury ;
as to which the following were the facts :— On the trial of an action of
ejectment (Doe d. Richard v. Griffiths), the lessor of the plaintifi claimed
to be entitled to a term, which had been granted to W. J. and R. M.
jointly. The will of J. was irrelevant to this title ; but the time of his
death was a material fact, and proof of the probate of the will of J. would
thus have been relevant evidence towards establishing the plaintiff's
title. A copy of this will was tendered in evidence. The purpose of
the plaintiff's counsel in tendering the evidence, was to clear a doubt
respecting the interest of J. in the term, which was expected to be raised
by the defendant, and after the document was withdrawn the survivorship
of R. M. was proved by other evidence. The examination of the
document tendered with the entry in the book called ' The Act Book '
at Llandafi, did not render the document legally admissible as an
examined copy of the act of probate.

For the prisoner, it was contended before the judges, that the
question was simply whether if a witness swears that he has
examined a document, not receivable in evidence, with a certain
book, can that be said to be material to the issue ? The time of
J.'s death was in issue ; how could the fact that the witness swore
that he had examined a paper, not receivable in evidence, with a
certain book, be material to the issue then being tried ? It is not enough
that the evidence has relation to the matter in issue ; it must be material
to the issue. It was contended, when the defendant was tried, that
what he had sworn was material for the jury, who were to act on the
evidence before them ; and, secondly, that it was material for the judge,
who was to say whether it was to be put to the jury or not. But it could
not be material for the jury ; for it was withdrawn from their considera-
tion, and they could not legitimately act upon it ; and here the judge
was not a judge of fact. This evidence was not on any issue of fact
which the judge had to try. It was merely evidence to be given to the
jury through the judge. Campbell, C.J., said : ' I am of opinion that
the conviction was right. There was false swearing in a judicial
proceeding. How can it be said not to have been material ? It was
necessary to prove that J. died before M. Although the fact of J.'s
death had been proved by parol testimony, if evidence was given to shew
that probate had been granted of J.'s will while M. was still living, it
would have been material in corroboration. With a view to have the
copy of the will received in evidence, the defendant swore falsely that he
had examined the paper produced with the original will at LlandafE,
and the entry on it with the entry in the Act Book ; and thereupon the
judge said, I will admit it, and if it had been read, it would have gone to
the jury with the rest of the evidence in the case. Afterwards the docu-
ment is withdrawn, but that cannot purge the false swearing committed
by the defendant. It has been said that if the judge were wrong in admit-
ting the document in evidence, the defendant could not be convicted,
making the offence of perjury depend upon whether a judge were right
or wrong in his decision on a question of law, and upon the decision of
some nice point in a bill of exceptions, which might ultimately go to the
House of Lords. We are all of opinion, as the evidence was given in

CHAP. I.] Of Perjury. 469

a judicial proceeding, with a view to the reception in evidence of a docu-
ment, which was material, and as that evidence was false, that all the
ingredients necessary to constitute the crime oE perjury are present' {v).

The prisoner was indicted for perjury before a Court of Requests, in
a proceeding under the interpleader section of the Act establishing the
Court, to ascertain whether a certain pig, which had been seized under
an execution issued against him on September 26, had been sold by
him on August 5 to his brother. The prisoner had sworn that he had sold
the pig to his brother on August 5, and the allegation of perjury was,
that the pig was not sold by the prisoner to his brother on the said 5th
day of August. It was contended that whether the pig was sold or not
on August 5 was not the material question ; the material question was
whether or not, at any time before the issuing of execution, there had
been a sale of the pig by the prisoner to his brother. It was quite im-
material whether the sale took place on a particular day, if it took place
at some time prior to the execution. Maule, J., said : ' I think that the
ultimate question to be decided is one thing, and yet that a material
question may be raised upon a matter collateral to that question. I
do not at all think that I can confine the law of perjury by making that
only perjury which is material to the only question to be tried, other-
wise persons might perjure themselves with impunity. It might be a
material question in a case of murder what coloured coat a man had
on : the colour of the pig, as I put it, might be most material ; for suppose
a person swore that this was a black pig, and another witness swore it
was white, it would have been a material question whether the pig was
black or white, although the ultimate question would have been whether
it was sold at the time when it was alleged to have been sold ' (w).

On the hearing of an information against R., under sect. -30 of the

Game Act, 1831 (1 & 2 Will. IV. c. 32), for committing a trespass in pursuit

of game on a close in the occupation of W., a witness having proved that

he saw R. in W.'s field, and saw him commit the offence there, the

prisoner swore, on behalf of R., that he went with R. into a lane adjoining

the field, and that R. shot into the field, but did not enter it, and that

he himself went into the field and fetched off what R. killed. On an

indictment for perjury in respect of this evidence, it was contended that

the evidence was not material ; because R. was equally guilty of an

offence within sect. 30, whether he went into the field and shot there,

or whether he shot from the lane, and the prisoner in his company went

in and brought away the game. But WiUiams, J., held that the evidence

was material {x).

(v) R. V. PhiUpotts [1851], 2 Den. 302. lany, L. & C. 593, post, p. 470.
In the course of the argument, Maule, J., (w) R. v. Altass [1843], 1 Cox, 17. A

said : ' Here the defendant by means of a case once occurred at Gloucester where on

false oath endeavours to have a document an indictment for stealing a rabbit the ques-

received in evidence ; it is, therefore, a tion turned on whether a rabbit found in

false oath in a judicial proceeding ; it is the prisoner's possession was a buck or doe

material to that judicial proceeding ; and rabbit, and numerous witnesses were called

it is not necessary that it should have been on each side, and the verdict was, ' We find

relevant and material to the issue being it was a buck rabbit ' — a case well illus-

tried.' In R. v. Gibbon, Pollock, C.B., trating Maule, J.'s remarks,
said that there was a great deal of very (x) R. v. Scotton [1844], 5 Q.B. 493.

good sense in Lord Campbell's judgment The case was not argued on this point in

in this case. Cf. on this point, R. v. Mul- the Queen's Bench.

470 Of Offences against the Administration of Justice, [book vii.

In R. V. MuUany {y), the perjury assigned was that the defendant,
on the trial of a cause in a County Court, wilfully, corruptly, and falsely
swore that his name was Edward and not Bernard Edward. On this
evidence the County Court judge had refused an amendment and struck
out the cause. On his conviction it was contended that the inquiry
as to the prisoner's name was immaterial. But Erie, C.J., said: ' The
question was put in the course of a judicial inquiry, and was so put by the
judge in the course of forming his judgment on the case, and for his own
guidance in forming such judgment. The prisoner thereupon swore
that which was false. He swore it in a judicial proceeding for the purpose
of affecting the decision ; and the statement he made was material because
on the strength of it the judge altered his judgment for the petitioner into
one for the defendant. The case therefore clearly comes within the
rule laid down in R. v. Phillpotts (z) and R. v. Gibbon ' (a).

Upon an indictment for perjury alleged to have been committed
in an answer to a bill filed in Chancery, it appeared that the bill was filed
against the defendant and R., stating an agreement to purchase certain
wheat, to be paid for by draft at three months, which agreement was not
reduced into writing, and that afterwards a bought note was delivered
to the defendant, which note did not contain fully the terms of the agree-
ment ; that the defendant brought an action and recovered a verdict ;
and that he was enabled to obtain such verdict by reason of his fraudu-
lently concealing the true terms of the agreement, and the bill prayed
that one of the terms of the contract might be declared to be that the
purchase-money should be paid by a bill of exchange, payable three
months after date ; and the defendant by his answer denied the parol
agreement stated in the bill. The bill was dismissed, and the denial by
the defendant was the subject of the indictment for perjury. It was
contended that the indictment could not be sustained on the ground that
the only proper evidence of the contract was the bought and sold notes :
that the contract by parol was void by the Statute of Frauds : and that a
false answer to a bill for the discovery of such a contract would not subject
a person to the indictment for perjury ; and R. v. Dunston (6) was relied
upon. Coleridge, J., said : ' In that case the bill in Chancery was to enforce
the performance of a parol contract, which could not be enforced by
reason of the Statute of Frauds ; and the case of R. i). Benesech (c) pro-
ceeded on the same ground. Though it is true that a party cannot vary

(y) L. & C. 593. pleaded to relate to the sale of lands, and

(z) 2 Den. 302. not enforceable by reason of s. 4 of the

[a) L. & C. 109, post, p. 473. In R. v. Statute of Frauds on the ground that the

Worley, 3 Cox, 535, the indictment was oath was irrelevant and immaterial,
for perjury in a matrimonial cause before (c) Peake, Add. Cas. 93. Kenyon, C.J.,

an Ecclesiastical Court, and the perjury held that perjury could not be assigned on

was assigned on an oath that W. had never denial of a promise to pay a marriage por-

passed by the assumed names A. or J. tion, it being pleaded in the suit that the

Denman, C.J., held the evidence of materi- agreement to give the portion was not in

ality insufficient, but as none of the writing, and was void under the Statute of

evidence is stated, except the single Frauds. See Bartlett v. Pickersgill, 4

question and answer on which perjury Burr. 2255 ; 4 East, 577n. ; where a case of

was assigned, it is difficult to see where indictment for perjury for denial of a part

this decision assists. agreement to buy land, which a Court of

(6) Ry. & M. 109. Tenterden, C.J., held Equity had refused to enforce. The

that perjury could not be assigned on the Statute of Frauds does not seem to have

denial of the making of an agreement been pleaded.

CHAP. I.] Of Perjury. 471

the terms of a written contract by parol evidence, he may shew by such
evidence that he was induced to sign the written contract inadvertently
and by fraud. In this case the object of setting up the parol terms of
the contract is for the purpose of avoiding the contract on the ground of
fraud.' ' I think that the principle, that parol evidence is inadmissible
to contradict or vary the terms of a written contract, does not apply
where the object of that evidence, as in this case, is to impeach the trans-
action on the ground of fraud. I think that the assignment of perjury
on the denial in the answer of the parol terms, which the bill prayed to
have established, is material and relevant ; and I think therefore that
the objection cannot be sustained ' [d).

In R. V. Courtney (e), an indictment for perjury before a coroner
while holding an inquest, alleged that it was a material question whether
the deceased, the prisoner, or another person had drunk any intoxicating
liquor during a certain interval, and that the prisoner falsely swore that
none of them had tasted any intoxicating liquor during that interval.
This statement was shewn to be false, but there were no grounds for
supposing that the deceased came to his death from anything except
from the effects of having been exposed to the night air. It was objected
that the matter so falsely sworn was not material, but Monahan, C.J.,
left the question of materiality to the jury, and they convicted ; and,
upon a case reserved, it was held that the evidence was material. It was
the duty of the coroner to inquire into aU the circumstances attending, or.
which might have caused, the death of the person upon whom the inquiry
was held. That being so, it at once became material to ascertain whether
or not death had not been caused to some extent by the deceased having
been tippling in a public-house, and therefore in a state to render it more
probable that he should have lost his way. It was material for the
coroner to ascertain, not only the actual cause of death, as murder,
felo de se, or otherwise, but also all the circumstances attending it, and
therefore it was a necessary part of his duty to ascertain the way in which
the deceased spent the evening before his death (/).

In R. V. Berry (17), the prisoner was indicted for perjury alleged to
have been committed by him on the hearing of an application of M. H.,
the mother of a bastard child, for an order in bastardy to be made upon the
prisoner. Upon the hearing M. H. swore that on the day after the
birth of the child the prisoner paid her £1 7s. &d., and that he paid her

(d) R. V. Yates, C. & M. 132. whether the answer related to matters in

(e) [1856] 7 Cox, 111 (Ir.). the cause or to other matters in difference.
(/) In R. V. Ball [1854], 6 Cox, 360, On this report, Mr. Greaves says :' Gurney,

Russell Gurney, Recorder, is reported to R., is far too good a criminal lawyer to

have said: ' In all these cases it is necessary have made such a decision as this, and I

to shew that the matter alleged to be have the best authority for saying that ho

falsely sworn was material. That cannot be never did so decide. Probably the evi-

done in this case without proof that it was dence failed to shew that the evidence was

material either to the action or to the other material in any respect upon the hearing of

matters in difference. The evidence failing the matters referred. It is obvious that

to shew this distinctly, the defendant must the paper in this case might have been

be acquitted.' The indictment was for material both to the matter in issue in the

perjury in an arbitration of a cause and all cause, and to the other matters referred,

matters in difference. The perjury was and yet according to this report the evi-

assigned as to the signature of a paper, dence would not have been material,'

Tbe arbjti-atpr was unable to say definitely (gi) [1859] Bell, 46,

472 Of Offences against the Administration of Justice, [book vii.

a weekly sum for several weeks after ; in answer thereto the prisoner
swore that he never paid M. H. any money at all upon any account
whatsoever, and on this statement perjury was assigned. The statement
was held material ; as it was necessary to prove at the hearing the payment
of the money ; and as the payment of the money for the maintenance of
the child was corroborative evidence of the paternity Qi).

Where a count stated that it was a material question whether a
bond was obtained by the fraud of the prisoner, and that the prisoner
falsely swore that he read over and explained it to the obligor ; Erie, J.,
ruled that the reading over the bond was material as being strong evidence
to negative fraud («.').

On an indictment of B. for falsely swearing on a trial for rape that she
had never got one W. to write a letter for her, which was shewn to her,
it was proved that B. had got W. to write a letter to the person she had
charged with the rape, saying, ' I will do all I can to clear you.' ' I should
not have went to the police about the matter at all, if I had not been
persuaded by ' two persons whom she named, &c. The evidence relating
to the writing of this letter was held material {j).

On an indictment for having falsely sworn before justices, on a charge
against the prosecutor for stealing three account books, that the
defendant saw him destroy another account book, the prosecutor being
also charged with embezzlement ; it was held that the evidence was not
material on the charge of larceny, as it would be merely bad con-
duct in one instance, inducing a probability of bad conduct in
another (k).

The prisoner was indicted for perjury on the hearing of a summons,
which he had taken out against the prosecutor for using language
calculated to incite him to commit a breach of the peace. The language
used by the prosecutor was in consequence of H. having, as the prose-
cutor alleged, kicked and struck a horse, and several witnesses were
called who proved this. H. was asked on cross-examination whether
it was true that he had ever kicked or struck the horse, and denied
that he had. Held, that the statement by the prisoner that he had
never kicked or struck the horse was merely collateral [1).

All false statements wilfully and corruptly made by a witness as to
matters which affect his credit are material, and he is liable to be con-
victed of perjury in respect of them. So where a person charged before
a magistrate with selling beer without a licence, falsely swore that, when
previously convicted of a similar offence, he had not authorised his
solicitor to plead guilty, it was held that such a statement was material,
as it affected his character as a witness, and that he was rightly con-

(h) In R. V. Owen [1852], 6 Cox, 105, (j) K ,.. Bennett [1851], 2 Den. 240,

perjury was assigned on the oath of 0. on Talfourd, J., on the trial : approved bv

a bastardy summons, that R. was the the judges on a case reserved on other

father of her child, and that R.'s uncle had points.

offered to raise her wages if she would (J) R. v. Southwood [1858], 1 F. & F.

swear the child to another man than R. It 356, Watson, B. It would have been

does not appear how this evidence came to material on the charge of embezzlement,

be admitted by the justices. Martin, B., (I) R. v. Holden, 12 Cox, 166. Should it

doubted its materiality, but left the case to not have been said ' quite irrelevant ' ?

the jury, who acquitted. As to perjury on collateral matters, vide

(i) R. V. Smith [1858], 1 F. & F. aS. anU, p. 467.

CHAP. I.] Of Perjury. 473

victed of perjury (m). The Court came to this conclusion on the authority
of the three cases next to be cited, and considered that the fact and
circumstances of the previous conviction were material not merely to
the quantum of punishment, but to the formation of the decision of
the magistrate on the case.

An indictment for perjury before commissioners of taxes on an appeal
of H. against a surcharge for a greyhound used by him on November 24,
averred that it was a material question whether a certain receipt produced
by the prisoner on the hearing of the appeal was given to him before
September 12, and that the defendant falsely swore that the receipt was
given to him before September 12. At the commissioners' meeting, evi-
dence was given that H. and the prisoner were coursing, on November 24,
with two greyhounds, one of which had been H.'s, who had no certificate.
H., in support of his appeal against a surcharge for this dog, said that
the dog had been sold to the defendant long before, and called him as
a witness. The prisoner swore that he bought the dog on September 6,
and produced a receipt for the purchase-money bearing that date. The
surveyor asked him whether the receipt was given at the time of the
sale, and he said it was not, but a few days after. On being pressed, he
swore positively that it was given him before September 12. It was
objected that the materiality of the question as stated in the indictment
had not been shewn ; that the material question was, whether the dog
was the defendant's or H.'s on November 24, the day of the coursing.
It had not been disproved that there had been a sale of the dog on Sep-
tember 6, and if there was, the time of giving the receipt, or even the fact
of any receipt having been given, was iriimaterial. The objection was
overruled, and on a case reserved, Abinger, C.B., said : ' The whole
matter turned on the credit of the witness, and he tries to support his
credit by false evidence. The receipt is to confirm his evidence, and
he swears it was given before the 12th. If that were true, the proof would
be decisive.' Wilhams, J. : ' The time when this receipt was given is a
step in the proof.' Denman, C.J. : ' Everything is material which affects
the credit of the witness.' Abinger, C.B. : ' Every question in cross-
examination which goes to the credit of the witness is material. If a
witness were asked, in cross-examination, whether he was in such a
place at such a time, and he denied it, that would be material if it went
to his credit. In the present case, if they could not have contradicted
the prisoner by the date of the stamp, the receipt confirming his evidence
would have made out the case before the commissioners' {n).

In E. V. Gibbon (o), the prisoner was indicted for falsely swearing on
the hearing of an apphcation in bastardy, that he had had connection
with the mother of the child. The mother in support of the application
had made a deposition before the magistrates, and she was then cross-
examined as to whether she had not had connection with the prisoner,
and she denied it. The prisoner swore that he had had connection with
her as imputed by the question put to her. It was objected that the

(m) E. V. Baker [1895], 1 Q.B. 797. (o) L. & C. 109 ; 31 L. J. M. C. 98. Cf.

(n) R. V. Overton [1842], C. & M. 665. R. v. Tyson, L. R. 1 C. C. R. 107. As to

See also R. v. Lavey [1860], 3 C. & K. 26, statements tending to render more credible

foet, p. 474, a material allegation.

474 Of Offences against the Administration of Justice, [book vii.

evidence given by the prisoner was not material to the issue raised on
the application for the affiliation order, as the question put to the mother
as to her having had connection with the prisoner merely went to affect
her credit, and her answer to it ought to have been regarded as conclusive,
and the evidence given by the prisoner was inadmissible. But, on a
case reserved, it was held that the prisoner was liable to be convicted.
It is now clearly established that a cross-examination going to a witness's
credit is material, and that perjury may be assigned upon it' (f). Here,
therefore, the mother might have been indicted if she had sworn falsely
on cross-examination upon this matter. ' Although it did not refer to
the main issue, which was the paternity of the child, it had a bearing
upon what was indirectly in issue ; namely, how far the complainant
was deserving of credit ' {q). ' Then, as the question only affected her
credit, as soon as she had answered it, all should have been bound by
her answer. This is an established rule of our law. Notwithstanding
that, the magistrates admitted the evidence of the prisoner, which legally
was inadmissible. Then, although not legally admissible, yet, being
admitted, it had a reference to what was indirectly in issue, — the credi-
bility of the complainant. The evidence having been admitted, although
wrongly, R. v. Phillpotts (r) is an authority directly in point that perjury
may be assigned upon it. Although the evidence was open to objection,
yet it does not lie in the witness's mouth to say that it was not a question
on which he was bound to speak the truth ' (s).

Is Materiality for Judge or Jury? — There are conflicting decisions
on the question whether materiality is for the judge or for the jury.

In R. V. Lavey {t), the indictment alleged that the defendant, as

(p) L. & C. 109, Crompton, J. and Sum. Ass., 1843, the mother on the first

(q) Ibid. Cookburn, C.J. trial swore to connection with the defend-

(r) Ante, pp. 467-9. ant on one occasion only ; and on the

[a] By eleven judges, Crompton, J., and second trial, before Williams, J., evidence

Martin, B., doubting. It was stated in the of an alibi was given, and also evidence that

aigument that the child was a full-grown the mother had had connection with others

child. The cases where it has been held on at such a time that one of them might have

a trial for rape that the woman may be been the father of the child ; and this evi-

proved to have had connection with other dence was given only with a view to the

men, were distinguished by Williams, J., on paternity of the child. The new trial had

the ground that ' the character of the been obtained on the affidavit (amongst

prosecutrix in those cases may be so mixed others) of the defendant expressly nega-

up with the facts as to be material, not only tiving any connection with the mother,

to her credit, but to the cause.' By coun- C. S. G. In R. v. Murray [18581, 1 F. & F.

sel for the prosecution they were distin- 80, B. had been charged before justices

guished on the ground that voluntary inter- with robbery in a railway carriage. He

course with others was very material on the had cross-examined the prosecutor as to

question whether she consented ; and this whether he had been in company with B.

distinction was not denied by any judge. and M. in Manchester on the previous day,

The cases where in an action for seduction and then called M., who swore that the

such evidence has been held admissible, prosecutor had accosted him while in com-

were distinguished on the ground that such pany with B., and proposed that he should

evidence affected the damages. But al- assist him in breaking into his uncle's

though Alderson, B., in Verry v. Watkins, house. Martin, B.,afteroonsultingByles, J.,

7 C. & P. 308, left such evidence to the jury held this to be evidence. On this case being

in mitigation of damages, he first left the cited in R. v. Gibbon, Martin, B., said,

question to them whether the defendant ' that case should not be looked upon as

was the father of the child, and my recol- any authority. It was only my impression

lection of the case (in which I was counsel of what was material formed hastily on

for the defendant) is that the evidence was circuit.'
given chiefly with a view to that question. «) [1850] 3 C. & K. 26,

And in Grinnell v. Walls, Gloucester Spr,

CHAP. I.] Of Perjury. 475

executrix of her husband, was plaintiff in a County Court action, and
that she falsely swore that she had never been tried at the Central Criminal
Court for any offence, and had never been in custody at the Thames
police station. It was proved that she had been in custody at the station,
and had been tried at the Central Criminal Court, and acquitted by the
direction of the judge. The County Court action was for goods sold by
the testator, and was heard by the judge without a jury, and the evidence
in question was given by the plaintiff during her cross-examination.
It was objected that the evidence given by the defendant was not material
on the question whether the testator in his lifetime sold the goods for
which the action was brought ; and as the trial in the County Court was
before a judge, and not before a jury, it did not weigh as to the result of
that trial whether she had been tried or not ; and since giving a true
answer that she had been acquitted by the direction of the judge would
have equally cleared her character, it could not have been material that
she denied having been taken into custody and tried on that charge.
Campbell, C.J., said : ' I think that there is evidence of materiality,'
and left that question to the jury, directing them to consider whether
her evidence on the two points in question might not influence the mind
of the County Court judge in believing or disbelieving the other state-
ments she made in giving her evidence (m).

In E. V. Courtney {v), where on an indictment for perjury before a
coroner a question was raised as to the materiality of the matter sworn,
and that question was left to the jury, who convicted ; it was held, in
Ireland, that the matter was material : and all the judges except one {w),
after fully considering the preceding case, expressed a very strong opinion
that it was for the judge to determine whether the matter was material
or not.

In E. V. Goddard (cc), the indictment alleged that on the hearing of
an apphcation for an order in bastardy, it became material to inquire
whether the prisoner had ever kissed the prosecutrix or had familiarity
with her. The prisoner, being examined in answer to the evidence given
by the prosecutrix, swore that he never had any connection or familiarity
with her, and never kissed her. It was objected that the evidence was
not material, as it was far too wide in the form in which it was given.
Wightman, J., consulted Erie, C.J., and declined to stop the case, and
after pointing out the necessity for two witnesses to prove the falsehood
of the prisoner's evidence, told the jury : ' Then the question arises whether
the parts of his evidence which are assigned as perjury were material to
the investigation. It seems to me that they were so, but that is for you.
Were they material and wilfully false ? ' These decisions appear to be

(u) In every previous case materiality the evidence to be material ; they did,

has been treated as a question of law, and therefore, treat the question as a matter of

it is submitted that it is clearly so ; other- law. If they had held it to be a question

wise all the cases in which it has been held for the jury, the question would have been

that an averment of materiality is unneces- whether the evidence warranted the ver-

sary where the materiality appears on the diet. See this case more fully stated, ante,

face of the indictment, are erroneous. p. 471.

(v) 7 Cox, 111 ; 5 Ir. C. L. Rep. 434. (x) [1861] 2 F. & F. 361, No authorities

(w) Ball, J., doubted. It is to be ob- were cited,
served that in this case all the judges held

476 Of Offences against the Administration of Justice, [book vii.

in conflict with K. v. Gibbon («/). Channell, B., on that case said lie never
could understand E. v. Lavey, ' unless on the ground that there was a
question whether the defendant in the County Court action meant to
plead or admit the claim. That point having been ascertained, the
question of materiality was no longer for the jury.'

Deliberation. — The false evidence must be given wilfully, i.e., with
some degree of deliberation. It cannot be regarded as wilful or corrupt
perjury if given through surprise or inattention or mistake (z). And
upon a trial for perjury it is necessary to shew that the prisoner's
attention has been sufficiently drawn to the exact question put to him (a),
and that the matter deposed to was then known to be false, or not known
to be true.

It does not matter whether the fact deposed to is in itself true or false ;
even if the thing sworn may happen to be true, yet, if it were not known to
be so by him who swears to it, his offence is as great as if it had been false,
inasmuch as he wilfully swears that he knows a thing to be true which
at the same time he knows nothing of, and impudently endeavours to
induce those before whom he swears to proceed upon the credit of a
deposition which any stranger might make as well as he (6).

Nor does it matter whether the falsity relates to something which
the witness swore he saw or heard or did, or to what he swore he thought,
or knew or remembered, or believed. It is certainly true that a man
may be indicted for swearing that he believes a fact to be true which he
must know to be false (c). In E. v. Schlesinger {d), an indictment for
perjury alleged that the defendant swore that he thought that certain
words written in red ink were not his writing ; whereas the defendant,
when he so deposed, thought that the said words were his writing ; and
it was held that the assignment was sufficient. If a witness swears that
he thought a certain fact took place, it may be difficult indeed to shew
that he committed wilful perjury. But it is certainly possible, and the
averment is as properly a subject of perjury as any other.

In E. V. Stolady (e), the prisoner was indicted for perjury on the hearing
of an information against B. for trespassing in pursuit of game. The
occupier of the land and two of his men swore that they saw B. on the
land on a particular Sunday morning. The prisoner was called by B. as
a witness, and swore that B. lodged with him, and that he never was
absent from his lodgings on any Sunday morning during the whole
time that they lodged together, which included the Sunday on which

(y) L. & C. 109, ante, p. 473. expressed a like opinion in Anon. [1780],
(z) 1 Hawk. c. 69, s. 2. 1 Hawk. u. 69, s. 7, note (a) ; and De Grey,
(a) See R. v. Mawbey, 6 T. R. 619. C.J., bo ruled in R. v. Miller, 3 Wils. K.B.
(6) 1 Hawk. 0. 69, o. 6. R. v. Edwards, 427 ; 2 W. Bl. 881. The opinion expressed
cor. Adams, B., Shrewsbury Lent Ass. 1764; by Coke that perjury cannot be assigned
and subsequently considered by the judges, on an oath as to opinion, recollection or
MS. And see R. v. Mawbey, 6 T. R. 619, belief (3 Inst. 166) must, therefore, be re-
Lawrence, J. 2 Rolle Abr. ' Indictment ' garded as erroneous. But perjury could
(E.) pL 5, p. 77. AUen v. Westley, Hetley, hardly be assigned on an opinion on such a
97. !|, Gurney's case, 3 Co. Inst. 166. See matter as the construction of a deed. See
R. V. Newton, 1 C. &. K. 469, for a count R. v. Crespigny, 1 Esp. 280, Kenyon, C.J.
framed to meet such a case. (d) 10 Q.B. 670. 17 L. J. M. C. 29.

CHAP. I.] Of Perjury. 477

the alleged ofEence was committed. Pollock, C.B., was of opinion that
the attention of the prisoner ought to have been called to the particular
day on which the transaction took place as to which he was asked to
speak ; and that a general allegation, such as had been made in this case,
including all Sundays between two fixed dates, was not sufficiently
precise upon which to found an indictment for perjury, and directed an
acquittal {/).

In R. V. London (g), the indictment charged that prisoner (on the trial
of a plaint in the County Court for the price of coals obtained on credit at
different times, in which it was a material question whether or not the
prisoner had received any coals on credit from P., either on account
of himself or A.), swore 'that he had never received any coals on credit
from P., either on account of himself or A.' Held, that the allegation in
the indictment was not too general, although no specific instance was
averred in which the prisoner had received coals on credit from P. At
the trial the prisoner was asked three or four times by the advocate
and judge whether he did at any time, either on his own account or
that of A., have any coals on credit from P., to which the prisoner always
answered, ' I did not.' It was held, that the prisoner's attention was
sufficiently called to the subject so as to found a charge of perjury upon
the answer, although no distinct transactions on credit were suggested
to him during his examination {h).

Corrupt Motive. — Perjury is always charged as having been committed
' corruptly,' as well as ' wilfully.' The word ' corruptly,' even if it be
not essential at common law (M), is inserted in indictments to justify
the statutory punishments provided for wilful and corrupt perjury [i).

The corrupt motive may be inferred by the jury from the circumstances

(/) ' This case is very unsatisfactorily re- on a similar information, the evidence was

ported ; no date is given, or anything more that the defendant did, within such a time

than is above stated. As the proof of the and such a time, steal a deer, so that the

offence was on " a particular Sunday morn- time was left as uncertain in the evidence

ing," the prisoner, if present, must have had as in the information, it was held sufficient,

his attention drawn to that particular date ; R. w. Simpson, 10 Mod. 248.' C. S. G.

and, if absent, still the date would have (g) 12 Cox, 50 (C. C. R.).

been known to B. from the summons, and, (h) BoviU, C. J., said : ' We are all of

as he called the prisoner as his witness, he opinion that this conviction was good,

no doubt had communicated the day to The first question is upon the form of the

him, so that the ground of the decision indictment, that is sufficient in'our opinion,

really did not exist. But supposing the The second point is whether the attention

decision to be as reported, it is very confi- of the prisoner was sufficiently called to the

dently submitted that it is erroneous. transaction he was being questioned about,

Suppose a man called to prove an alibi and we are all of opinion it was amply

swears that he and the prisoner were in called to it, even if the second point had

Paris during all the month in which the been reserved for us.' Willes, J., said:

offence was committed, can it be the law ' We do not intend to overrule what Pol-

that he is not guilty of perjury because he lock, C.B., said, " that the attention of a

is not asked as to the particular day ? If witness ought to be called to the point upon

a man swears that he was not absent from which his answer is supposed to be erro-

church on any Sunday in January, is not neous, before a charge for perjury can be

that as precise a. swearing as to each founded upon it." Mr. Greaves in the

and every Sunday as if he were asked 4th edition of Russell on Crimes, makes

as to each in succession ? An information, some observations on R. v. Stolady, which

which charges the defendant with killing are in accordance with the judgment of the

ten deer between July 1 and Sept. 10, Lord Chief Justice.'

without shewing the particular days on (hh) It is used in 32 Hen. VIII. v;. 9, s. 3 ;

which they were killed, is good. R. v. 5 Eliz. c. 9, s. 2, post, p. 525.

Chandler, 1 Ld. Raym. 581. And where, (i) See post, p. 479.

478 Of Offences against the Administration of Justice. [BooK vll.

of the case (/), and in order to shew that the accused swore wilfully and
corruptly what was not true, evidence may be given of expressions of
malice used by the defendant towards the person against whom he gave
the false evidence {h).

Where an indictment for perjury alleged that the prisoner 'feloni-
ously ' swore to the matter on which the perjury was assigned instead
of ' falsely,' it was held that" the indictment was bad in substance, and
that the words ' corruptly, knowingly, wilfully, and maliciously,' did
not supply the defect : a man might swear ' corruptly ' under some
corrupt influence, and yet swear the truth ; so with respect to the word
' knowingly ' ; and he might swear ' wilfully and maliciously ' to gratify
some malicious feeling, but yet it might not be ' falsely.' Nor did the
conclusion that the prisoner ' in manner and form aforesaid did commit
wilful and corrupt perjury ' cure the defect ; for the meaning of that
was, that the prisoner committed the offence in the manner stated,
and, that statement being defective, the indictment was bad (I).

Trial.

Perjury is now tried only on indictment or criminal information,
except in those cases in which a child of tender years allowed to give
unsworn evidence may be summarily convicted {vide ante, p. 457).

In one old case, where a person made an affidavit in the Courtof Common
Pleas, and afterwards, being summoned to appear in Court, came there,
and confessed it to be false, the Court recorded his confession, and ordered
that he should be taken into custody, and put in the pillory. In answer
to the objections of the defendant's counsel to this proceeding, it was
argued that it was fully justified under 5 Eliz. c. 9, and that even if the
Court could not punish the defendant by virtue of that statute, he might
be punished at common law, on the ground that any Court might punish
such a criminal for an offence committed in facie curiae (m). This ruling
appears to treat perjury or prevarication as a form of contempt of Court {n).

Courts of Quarter Sessions had no jurisdiction to try common law per-
jury (o). They were given jurisdiction by 5 Eliz. c. 9 {fost, p. 525). But by
the Quarter Sessions Act, 1842 (5 & 6 Vict. c. 38), s. 1, Courts of Quarter
Sessions have no jurisdiction to try ' any person or persons for . . .
perjury or subornation of perjury ' ; or ' making or suborning any other
person to make a false oath, affirmation, or declaration punishable as
perjury, or as a misdemeanor ' (p).

(j) R. V. Knill, 6 B. & Aid. 929n. refused to try an indictment for perjury

(k) R.. V. Munton, 3 C. & P. 498, Tenter- found at quarter sessions, and removed by

den, C.J. In this case the evidence seems certiorari into the King's Bench for trial at

to have been admitted without objection. nisi prius, on the ground that the indict-

See also 1 Hawk. c. 69, s. 2. R. v. Melling, ment was void, having been found before a

6 Mod. 349. R. v. Muscot, 10 Mod. 192. Court which had no jurisdiction over per-

(?) R. V. Oxley, 3 C. & K. 317, Cresswell, jury at common law. See also R. v. Rigby,

J., after consulting Alderson, B. 8 C. & P. 770.

(m) R. t). Thorogood, 8 Mod. 179. Bush- (p) Itistobeobservedthatthe word 'try'

ell's case, Vaughan, 152, was cited. is used, and under this Act it would seem

(n) See Oswald on Contempts (2nd ed.). possible for the grand jury at quarter ses-

ChangHangKiuv. Piggott[1909], A. C. 313. sions to find an indictment for perjury but

(o) R. ('. Bainton, 2 Str. 1088. R. v. for the provisions of the Vexatious Indict-

Westiness, id. ibid. 1 Chit. Cr. L. 301. In ments Act, which in effect ensure commit-

R. V. Haynes, Ry. & M. 298, Gaselee, J., tal of charges of perjury to a court of assize

CflAp. t.i Of Perjury. 479

It is the practice of the Central Criminal Court not to try an indictment
for perjury arising out of a civil suit while that sait is in any way un-
determined, except in cases in which the Court, where the suit is pending,
postpones the decision of it in order that the criminal charge might first
be disposed of {q).

Where two justices refused to hold a preliminary inquiry into a charge
of perjury alleged to have been committed in a suit in the Ecclesiastical
Court, on the ground that that suit was still pending, a mandamus to
compel them to hear the charge was refused, and it seems to have been
considered that the course the justices had taken was the most likely to
answer the ends of justice (r).

Punishment.

The pimishment of wilful perjury by a witness is at common law (s)
fine and (or) imprisonment without hard labour. The amount of the
fine and the term of imprisonment are in the discretion of the Court (<).
By the Hard Labour Act, 1822 (3 Geo. IV. c. 114) (M),the imprisonment
may be with hard labour. The Court may also adjudge the defendant
to give surety to keep the peace and be of good behaviour for a reasonable
time, to be computed from and after the expiration of the term of his im-
prisonment, himself in a sum named in such judgment, with two sufiicient
sureties, each in a sxim therein also mentioned, and may adjudge the
defendant to be further imprisoned until such security be given ; and
such sentence does not amount to perpetual imprisonment, as in default
of sureties being given the defendant would be entitled to be discharged
at the expiration of the term during which the sureties were required {v).

By the Perjury Act, 1728 (2 Geo. II. c. 25), s. 2, in order the more
effectually to deter persons from committing wilful and corrupt perjury,
or subornation of perjury, it is enacted, ' that besides the punishment
already to be inflicted by law for so great crimes, it shall and may be
lawful for the Court or judge, before whom any person shall be con-
victed of wilful and corrupt perjury, or subornation of perjury, according
to the laws now in being, to order such person to be sent to some house
of correction within the same county for a time not exceeding seven
years (iv), there to be kept to hard labour (x) during all the said time,
or otherwise to be transported to some of His Majesty's plantations

{q) See R. V. Ashburn and R. v. Simmons, remanded to the custody of the marshal,

8 C. & P. 50. to be kept by him in safe custody, in exe-

(r) R. V. Ingham, 14 Q.B. 396. cution of the judgment aforesaid, and until

(s) As to the punishment under the he shall be transported as aforesaid.' The

Statute of Elizabeth, see post, p. 526. As pillory is abolished, vide ante, p. 250.

to former punishments, see 4 Bl. Com. 138. (u) Ante, p. 212.

(«) 4 Bl. Com. 138. R. v. Nueys and (v) R. v. Dunn, 12 Q.B. 1026, decided on

Galey, 1 W. Bl. 416. R. v. Lookup, 3 the authority of R. w. Hart, 30 St. Tr. 1131,

Burr. 1901. In this last case the form of 1194, 1344, where the judges, in answer to

the sentence was that the defendant a question from the House of Lords, de-

' should be set in and upon the pillory at livered their unanimous opinion that in a.11

Charing Cross, for an hour between the cases of misdemeanor the Court might give

hours of twelve and two ; and that he sentence in that form,

should afterwards be transported to some {w) It is submitted that this term is re-

of His Majesty's colonies or plantations in duced to two years by 54 & 55 Vict. c. 69,

America, for the space of seven years (2 o. 1, ante, p. 212.

Geo. II. 0. 25, s. 2, infra) ; and be now {x) See 3 Geo. IV. c. 114, ante, p. 212.

480 Of Offences against the Administration of Justice, [book vil.

beyond the seas, for a term not exceeding seven years («/), as the Court
shall think most proper ; and thereupon judgment shall be given, that
the person convicted shall be committed or transported accordingly,
over and beside such punishment as shall be adjudged to be inflicted on
such person, agreeable to the laws now in being (z) ; and if transportation
be directed, the same shall be executed in such manner as is or shall be
provided by law for the transportation of felons.' The section goes on
to provide that ' if any person so committed or transported shall vol-
untarily escape or break prison, or return from transportation before
the expiration of the time for which he shall be ordered to be transported
as aforesaid, such person, being thereof lawfully convicted, shall suffer
death as a felon (a), without benefit of clergy, and shall be tried for such
felony in the county where he so escaped, or where he shall be appre-
hended.'

The old law (6) disqualifying a person convicted of perjury from
giving evidence was abrogated by the Evidence Act, 1843 (6 & 7 Vict,
c. 85, s. 1). 2 Geo. II. c. 25, s. 2, applies to false oaths punishable as perjury
taken in a manner authorised by subsequent statutes (c), and under it
successive sentences of seven years penal servitude may be imposed on
conviction on two or more counts charging perjury by the defendant
on different occasions, although in each case with the same object {d).

The first count of an indictment assigned perjury on an affidavit of
the defendant, which alleged that the defendant did not retain or employ
W. U. to act as attorney for him and J. I., or for either of them, in and
about the business mentioned in the said W. U.'s bill of costs ; and that
he, the defendant, never retained or employed the said W. U. to act as
attorney or agent for him in any cause or manner whatever. The second
count assigned perjury on the statement in the affidavit as follows :
' that he the said defendant did not retain or employ (meaning that he
the defendant did not alone, or jointly with the said J. I., retain or employ)
W. U. to act as attorney for him and J. I.' The third count was the same
as the first, and the fourth as the second. The plea was, not guilty of
the premises in the indictment specified. The venire was ' to recognise
whether the defendant be guilty of the perjury and misdemeanor afore-
said, or not guilty.' The verdict was that the defendant ' is guilty of
the perjury and misdemeanor aforesaid,' and the judgment that the
defendant ' be imprisoned and kept to hard labour for ten calendar
months.' It was urged that the venire, the verdict and judgment, were
uncertain for not shewing to which of the counts they referred : that
they were in the singular number, speaking of ' the perjury and

(y) Now penal servitude from three to transportation, the clause seems to be

seven years (54 & 55 Viot. o. 69, s. 1, ante,- superseded by 5 Geo. IV. c. 84, s. 22, and

p. 211). As to the proper form of a judg- the death penalty under that section was

ment of transportation while it was in repealed in 1834 (5 & 6 Will. IV. c. 67), in

force, see R. v. Kenworthy, 1 B. & 0. 711, terms which seem wide enough to cover the

R. V. Lookup, 3 Burr. 1901. above clause.

(z) It is not imperative upon the Court (h) Gilb. Ev. 126. Bull. (N. P.) 291. 4

to award any punishment previous to, or Bl. Com. 138. 2 Hawk. c. 46, s. 101. And

additional to, that of penal servitude. see 5 Eliz. c. 9, s. 2, Tpost, p. 526.
Castro V. R., 6 A.C. 229. (c) R. v. Castro, L. R. 9 Q.B. 350.

(a) This death penalty has not been ex- (d) Castro v. R., 6 A.C. 229.

pressly repealed. But so far as concerns

CHAP. I.J Of Perjury. 481

misdemeanor aforesaid/ and that this could only mean one perjury and
misdemeanor ; and that as four were alleged in the indictment, it was
uncertain which of them the jury was summoned to try, and of which of
them the defendant was found guilty ; but the Courts of Queen's Bench
and Exchequer Chamber held that ' misdemeanor ' was nomen collectivum,
and meant ' the misconduct aforesaid,' and that consequently the venire
applied to all the counts of the indictment, and the defendant had been
found guilty by the verdict on all the counts (e).

Where on an indictment for perjury containing several counts the
judgment was ' that the prisoner for the offence charged upon him in and
by each and every count be imprisoned for the space of eight calendar
months now next ensuing '; it was held by the Court of Exchequer Chamber
that the judgment was good, on the ground that it meant that the prisoner
was to be imprisoned for the same period of eight months for each offence {/) .

Ordering Prosecution.— By the Criminal Procedure Act, 1851 (14 & 15
Vict. c. 100), s. 19, ' it shall and maybe lawful for the judges or judge of
any of the superior courts of common law or equity, or for any of His
Majesty's justices or commissioners of assize, nisi prius, oyer and terminer,
or gaol delivery, or for any justices of the peace, recorder, or deputy
recorder, chairman, or other judge holding any general or quarter sessions
of the peace, or for any commissioner of bankruptcy or insolvency, or
for any judge or deputy judge of any county court, or any court of record,
or for any justices of the peace in special or petty sessions, or for any
sheriff or his lawful deputy before whom any writ of inquiry or writ of
trial from any of the superior courts shall be executed, in case it shall
appear to him or them that any person has been guilty of wilful and
corrupt perjury in any evidence given, or in any affidavit, deposition,
examination, answer, or other proceeding made or taken before him or
them, to direct such person to be prosecuted for such perjury, in case
there shall appear to him or them a reasonable cause for such prosecution,
and to commit (g) such person so directed to be prosecuted until the
next session of oyer and terminer or gaol delivery for the county or
other district within which such perjury was committed, unless such
person shall enter into a recognisance, with one or more sufficient surety
or sureties, conditioned for the appearance of such person at such next
session of oyer and terminer or gaol delivery, and that he will then
surrender and take his trial, and not depart the court without leave, and to
require any person he or they may think fit to enter into a recognisance,
conditioned to prosecute or give evidence against such person so directed
to be prosecuted as aforesaid, and to give to the party so bound to prose-
cute a certificate of the same being directed, which certificate shall be
given without any fee or charge, and shall be deemed sufficient proof of
such prosecution having been directed as aforesaid ; and upon the produc-
tion thereof the costs of such prosecution shall and are hereby required
to be allowed by the court before which any person shall be prosecuted
or tried in pursuance of such direction as aforesaid, unless such last-

(e) Ryalls v. E., 11 Q.B. 781, approving this section is not used, and its exercise is

R. ;;. PoweU, 2 B. & Ad. 75. obviously inconvenient. See 44 Sol. Jo.

(/) King V. R., 14 Q.B. 31. 525 ; 64 J. P. 370. The section extends to

{g) The power of direct committal under Ireland : and see 14 & 15 Vict. c. 57, s. 157 (I).

vol.. I. 2 I

482 Of Offences against the Administration of Justice, [book vii.

mentioned court shall specially otherwise direct ; and when allowed
by any such court in Ireland such sum as shall be so allowed shall be
ordered by the said court to be paid to the prosecutor by the treasurer of
the county in which such offence shall be alleged to have been committed,
and the same shall be presented for, raised, and levied in the same manner
as the expenses of prosecutions for felonies are now presented for, raised,
and levied in Ireland : provided always, that no such direction or certifi-
cate shall be given in evidence upon any trial to be had against any
person upon a prosecution so directed as aforesaid ' (k).

Form of Indictment. — Besides the general rules of the common and
statute law as to criminal pleading, indictments for perjury and cognate
offences are subject to the following enactments : —

14 & 15 Vict. c. 100, s. 20. ' In every indictment for perjury, or for
unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously, or
corruptly taking, making, signing, or subscribing any oath, affirmation,
declaration, afiidavit, deposition, bill, answer, notice, certificate, or other
writing, it shall be sufficient to set forth the substance of the offence
charged upon the defendant, and by what Court or before whom the
oath, affirmation, declaration, affidavit, deposition, bill, answer, notice,
certificate, or other writing, was taken, made, signed, or subscribed,
without setting forth the bill, answer, information, indictment, declara-
tion, or any part of any proceeding, either in law or in equity, and
without setting forth the commission or authority of the Court or person
before whom such offence was committed ' (t).

Sect. 21. 'In every indictment for subornation of perjury, or for
corrupt bargaining or contracting with any person to commit wilful
and corrupt perjury, or for inciting, causing, or procuring any person
unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously, or
corruptly to take, make, sign, or subscribe any oath, affirmation, declara-
tion, affidavit, deposition, bill, answer, notice, certificate, or other writing,
it shall be sufficient, wherever such perjury or other offence aforesaid
shall have been actually committed, to allege the offence of the person
who actually committed such perjury or other offence in the manner
hereinbefore mentioned, and then to allege that the defendant unlawfully,
wilfully, and corruptly did cause and procure the said person the said
offence, in manner and form aforesaid, to do and commit ; and wherever
such perjury or other offence aforesaid shall not have been actually
committed, it shall be sufficient to set forth the substance of the offence
charged upon the defendant, without setting forth or averring any of
the matters or things hereinbefore rendered unnecessary to be set forth or
averred in the case of wilful and corrupt perjury.'

Sect. 22. ' A certificate containing the substance and effect only
(omitting the formal part) of the indictment and trial for any felony or

(h) As to costs in England, see 8 Edw. Court or persons to have a competent

VII. c. l/i, jooii, Bk. xii. c. V. Subject to this authority to administer the aame.' 23

enactment perjury and subornation are Geo. II. o. 11 was repealed in 1867 (S.L.R.).

within the Vexatious Indictments Act, R. v. Dunning, L. B. 1 C. C. R. 290, 292 ;

post, Bk. xii. u. i. 40 L. J. M. C. 58, Channell, B. As to the

(i) This section is almost identical in inadequate use made of that enactment,

terms with 23 Geo. II. c. 11, s. 1, except see R. v. Dowlin, 5 T. R. 311.
that it omits the words "averring such

CHAP. I.] Of Perjury. 483

misdemeanor, purporting to be signed by the clerk of the Court or other
officer having the custody of the records of the Court where such indict-
ment was tried, or by the deputy of such clerk or other officer (for which
certificate a fee of six shillings and eightpence and no more shall be
demanded or taken), shall upon the trial of any indictment for perjury
or subornation of perjury be sufficient evidence of the trial of such indict-
ment for felony or misdemeanor, without proof of the signature or official
character of the person appearing to have signed the same ' (j).

Several persons cannot be joined in one indictment for perjury, the
crime being in its nature several (k).

Venue. — In an indictment for perjury the marginal venue is
sufficient (I) and it is enough to shew the offence committed any-
where within the county, without naming the parish or place where
the false oath was taken. Where perjury had been committed in
the booth-hall within the limits of the city of Gloucester, which is a
county of itself, on the trial of a cause before a jury of the county
at large, it was held that the indictment might be found and tried
by juries of the county at large (m). And where perjury had been
committed on the trial of an indictment at the Worcester quarter
sessions, which were held in the Guildhall at Worcester, which is
situate in the county of the city of Worcester, it was held that
the indictment, which was found by the grand jury of the county
of the city of Worcester, was good, as it was preferred in the
county where the oath was actually taken (w). Where perjury was
assigned on an affidavit of an attorney of the Court made in answer to
a summary application against him, it was objected that it was not
stated where the Court was held when the original application was made,
or when the rule was made, calling upon the defendant to answer the
charge. But the venue was held to have been sufficiently stated, it being
exgcessly averred that the defendant ' then and there before the said
Court was duly sworn ' (o). In the case of an affidavit sworn in the country
the party at common law could not be indicted where the affidavit is
used, but only where the ofEence was completed by making the false
oath (p). But in the case of affidavits sworn under the Commissioners of
Oaths Act, 1889, the deponent may be indicted in any county or place in
the United Kingdom in which he was apprehended or is in custody (q).

(j) The complete record would be equally 1 Mood. 323. Allegations of place should

good evidence ; but production of the in- be made when they are material. R. v.

dictment alone has been held insufficient. Aylett, 1 T. R. 64, 69, Lord Mansfield.

R. V. Coles, 16 Cox, 165, Stephen, J. (m) R. v. Gough, 2 Dougl. 791. In this

{k) R. V. Philips, 2 Str. 921. ' In R. v. case » charter had made Gloucester a

Goodfellow, C. & M. 569, one defendant county of itself, reserving only the trial of

was indicted for perjury, and the other for matters arising in the county at large within

suborninghim to commit the perjury, andno Gloudester as before. The judges inti-

objection was taken to both being included mated their opinions that the indictment

in the same indictment ; and it would seem might be in either county, but they were

none could have been successfully taken on clear it might be in the county at large,

that ground, as it is like the case of principal (re) R. v. Jones, 6 C. & P. 137, Tindal,

and accessory before the fact, included in C.J. See the Counties of Cities Acts, ante,

the same indictment.' C. S. G. Vide post, p. 25.

p. 527. (o) R. V. Crossley, 7 T. R. 315.

(I) 14 & 15 Vict. c. 100, 3. 23. See R. v. (p) Same case, Kenyon, C.J.

Harris, 2 Leaoh, 800. R. v. Woodward, {q) 52 & 53 Vict. i;. 10, s. 9.

2 I 2

484 Of Offences against the Administration of Justice, [book vii.

Time. — The indictment need not state the time at which the offence
was committed unless the time is of the essence of the offence- (r), and
if averred where it is not material, it may be rej ected (s) . Where an indict-
ment for perjury, charged to have been committed in the defendant's
answer to a bill of discovery filed in the Court of Exchequer, alleged that
the bill was filed on a day specified, it was held that the day was not
material, as it was not alleged as part of the record (t). Where perjury
was assigned on an answer to a bill alleged to have been filed in a par-
ticular term, and a copy produced was of a bill amended in a subsequent
term, by order of the Court, it was held that the amended bill was
part of the original bill (u). On an indictment for perjury committed
on the trial of a cause at m.ii prius which contained no express reference
to the record, it was held immaterial that the nisi prius record stated
the trial to have been on a day different from that stated in the
indictment (v).

Description of Court. — It is necessary to aver by what Court or
before whom the oath was taken, but unnecessary to set forth the
commission or authority of the Court or person (iv). The description of
the Court should, of course, be accurate, especially if it is a Court of
limited jurisdiction ; but may be amended if there is a variance between
the statement and the evidence as to something not material to the
merits of the case (x). The enactments mentioned above have lessened,
if not destroyed, the authority of the cases in which certain variances
have been held fatal, e.g., where the indictment charged perjury before
justices assigned to take the assizes («/), and the evidence shewed that the
judge was sitting under the Commission of Oyer and Terminer, and
Gaol Delivery (z), or where the indictment charged perjury at the assizes
and general sessions of Oyer and Terminer, and the evidence proved
the oath to have been taken on the Crown side, and not on the civil
side (a).

(r) 14 & 15 Vict. c. 100, s. 24. In R. v. In R. v. Western, L. R. 1 C. C. R. 122, the

Aylett, T. R. 64, 69, Lord Mansfield said : Court held that the indietment could be

' There must be an allegation of time and amended by substituting the description of

place, which are sometimes material and the court of justices for a borough instead

necessary, sometimes not.' of justices for a county. The justices were

(s) R. V. Aylett, 1 T. R. 70, 71. named in the indictment.

(i) R. V. Huoks, 1 Stark. (N.P.) 521, Ellen- (j/) As to present definition of ' assizes,'

borough, C.J. And see Rastall v. Straton, vide ante, p. 3.

1 H. Bl. 49. Woodford v. Ashley, 2 Camp. (z) R. v. Lincoln, R. & R. 421, MS.

193, and 1 Stark. Cr. PI. 122. Bayley, J.

(«) R. V. Waller [1719], 3 Stark. Evid. (a) See the precedents, 2 Chit. Cr. L.

856. 366, 367 (a), of indictments for perjury on

{v) R. V. Coppard, M. & M. 118. 3 C. & the trial of causes at the assizes, which are
P. 59, Tenterden, C.J., on the authority of in the form of this indictment ; though,
Purcell V. Macnamara, 9 East, 157. It is according to 3 Bl. Com. 60, the commission of
no longer necessary, and is not now the assize is to take the verdict of a peculiar
practice, to use the words ' as appears by the species of jury, called an assize. Black-
record.' 14 & 15 Vict. c. 100, s. 24. stone also speaks of a commission of assize

(w) 14 & 15 Vict. c. 100, s. 20, ante, p. 482. being issued each circuit ; but no such

{x) 14 & 15 Vict. c. 100, 8. 1. In R. v. commission is now issued, and the cases
Child [1851], 5 Cox, 197, the indictment tried on the civil side are tried under the
alleged perjury at [the assizes and] general commission of assize. And this is accord-
sessions of the delivery of the gaol. Tal- ing to what Lord Holt said (Bullock v. Par-
fourd, J., ordered the words in brackets to sons, 2 Salk. 454): 'The authority of the
be struck out to make the indictment eorre- judge of nisi prius is not by the distringas,
spond with the record of the former trial, but by the commission of assize ; for it is

CHAP. 1.] Of Perjury. 485

An indictment for perjury may state the trial to have taken place
before the judge, who in fact tried the case, or before the judges before
whom it is considered in point of law to have taken place (&).

An indictment alleged that an issue was tried before the sheriff of the
county of Durham, by virtue of a writ to him directed, and that upon
the trial of that issue "the prisoner was duly sworn before the said sheriff.
By the writ of trial, return, and" the record, the issue did appear to
have been tried before the sheriff ; but by the parol evidence it appeared
that the issue was not tried before the sheriff or under-sheriff, and that
neither of them was present, but that it was in fact tried before S., who
was stated to be the deputy of the high-sheriff ; but no appointment of
S. was put in, nor was his office more particularly described. Wightman,
J., upon being informed that it was the invariable practice when writs of
trial were directed to the sheriff, to make up the record as if the trial had
been before him, though in fact it was before some deputy, allowed
the trial to proceed, and the prisoner was convicted ; and, upon a
case reserved, the majority of the judges held that the conviction
was right (c).

Description of the Proceedings. — It is not necessary to set forth
in detail any part of the proceedings in which the false oath is said to have
been taken [d). It is enough to aver that there was a certain cause, &c.,
and that it came on to be tried in due form of law (e) ; and even before
1851 it was sufficient to recite the substance and not the tenor of the
record of the former proceeding (/).

An indictment for perjury, alleged to have been committed before a
Court of Quarter Sessions, averred in substance that a certain indictment

13 Edw. I. c. 30 which gives the trial by indictment was for perjury at the assizes

nisi prius, and by that statute the trial by (civil side). Two judges were named in the

nisi prius is given before justices of assize.' commission and in the caption of the indict-

It is clear, therefore, that where perjury is ment. The point was reserved and decided

committed either on a civil or criminal trial as stated in the text. Cf. R. v. Coppard,

at nisi prius on circuit the trial ought to be M. & M. 148, which turned on the now

alleged to have taken place before the jus- obsolete practice as to trials in sittings after

tices assigned to take the assizes. C. S. G. term in London ; and R. u. Deman, 2 Ld.

In R. V. Fairburn (Stafford Summer As- Raym. 1221.

sizes, 1850, MSS. C. S. G.) the indictment (c) R. v. Dunn, 2 Mood. 297, followed in

charged perjury before justices assigned to R. v. Sohlesinger, 10 Q.B. 670. In R. v.

take the assizes. The record proved that Child, 5 Cox, 197, the indictment alleged a

the former trial had taken place at the trial for felony before the judges named in

assizes and general sessions of oyer and ter- a commission of oyer and terminer, &c. It

miner. Greaves, Q.C., ruled that this was had, in fact, taken place before Greaves,

not a fatal variance, as the indictment for Q.C., in the grand jury room. Mr. Greaves

rape might have been removed by certiorari was a J.P. for the county in which the

and tried on the civil side. But the record assizes were held. Talfourd, J., expressed

went on to say that the trial was in the a doubt whether his authority to try the

Crown Court, which was held fatal, and not case sufficiently appeared in the indictment,

amendable under 9 Geo. IV. c. 15, now (d) 14 & 15 Vict. c. 100, s. 20, ante, p. 482.

superseded and extended by 14 & 15 Vict. (e) R. v. Dowlin, 5 T. R. 311, 320. R. v.

c. 100, s. 1. As to the proper mode of Dunning, L. R. 1 0. C. R. 290, 293.

describing the tribunal on indictments for (/) May's case, BuUer, J., 1799. He

perjury in a county court or before a com- cited R. v. Beech, 1 Leach, 133 (a case of

mittee of Parliament, see Lavey v. R., 2 mis-spelling). See R. v. Spencer, 1 C. & P.

Den. 504 : 3 C. & K. 26. R. v Dunn, 260 ; Ry. & M. 97. Doubts on words in a

12 Q.B. 1026. As to describing acommon- record are for the Court to settle. R. v.

law county court, see Jones v. Jones, 5 M. Hucks, 1 Stark. (N. P.) 521, EUenborough,

& W. 523. R. V. Fellows, 1 C. & K. 115. L.C.J.
(6) R. V. Alford, 1 Leach, 150. The

486 Of Offences against the Administration of Justice, [book vii.

for misdemeanor (g), Sec, came on to be tried in due form of law, and was
tried by a jury duly sworn, and the prisoner, as a witness on the trial,
was duly sworn, and contained the other usual averments and conclusion.
It did not state the nature of the misdemeanor, or aver that the Court
of Quarter Sessions had authority to try the same or administer an oath
on the trial. It was held, that the substance of the offence charged
against the defendant was sufficiently stated under this enactment, and
that the indictment was good on motion in arrest of judgment (h).

But enough should be stated to shew that the proceeding in or for
which the oath was sworn was judicial, and the oath not a voluntary
oath (i). Most of the older authorities (j) on this subject may be
disregarded, as superseded b}' the provisions of the Criminal Procedure
Act, 1851, and the power of amendment by that Act given.

Where an indictment for perjury alleged that a certain issue in a
plea of debt came on to be tried, and that upon the trial of the said issue
so joined between the parties, certain questions became material, &c.,
but by the record it appeared that three issues had been joined on three
pleas ; it was objected that it was impossible to know to which of them
the averment of materiality referred ; but Erie, J., held that ' issue '
was nomen collectivum, and overruled the objection (k).

In E. V. Pearson (Z), it was held insufficient to aver that P. went before
two justices and deposed to assault on him and the taking of a £5 note
from him by M., without stating that there was any proceeding pending
before the justices, or that the deposition was taken in support of a charge
of crime, on the ground that the statement made was consistent with P.
having merely made a voluntary affidavit, where there was no charge
and no prosecution and no cause in hand (m). But in R. v. Bradley (n),
Coleridge, J., said that considerable doubts had been raised in R. v.
Gardiner (o) whether R. v. Pearson was rightly decided.

Jurisdiction of the Court. — Before 1851 it was necessary expressly to
allege, or clearly to indicate in the indictment, that the Court or person
before whom the oath was taken had authority to administer the oath for
the purpose of the proceeding in which it was taken. Under 14 & 15 Vict.

ig) It is expedient to specify the nature equity proceeding. U. v. Bailey, 7 C. & P.

of the offence to which the first trial related. 264 (misdescription of the parties in pro-

Where the indictment charged perjury on ceedings in an Ecclesiastical Court). Cf. R.

the hearing of a charge of feloniously re- v. Peace, 2 B. & Aid. 579.

ceiving stolen silk, and the evidence shewed {Ic) R. v. Smith, 1 F. & P. 98.

that the charge was for having possession (I) 8 C. & P. 119, Coleridge, J.

of silk suspected to have been purloined or (m) By 5 & 6 Will. IV. o. 62, s. 13, ante,

embezzled (17 Geo. III. c. 56), Patteson, p. 325, justices are prohibited from taking

J. , held that the indictment was not proved. affidavits under such circumstances.

R. V. Goodfellow, C. & M. 569. (n) [1844] Stafford Spring Assizes, MSS.

(h) R. V. Dunning, L. R. 1 C. C. R. 290. C. S. G.

As to curing by proof defects in statement (o) 2 Mood. 95 ; 8 C. & P. 737. In that

of the adjournment of a Court of Quarter case an indictment was held good, which

Sessions, see R. v. Bellamy, Ry. & M. 171, averred ' upon an information and exami-

Abbott, C.J. nation, &c.' but did not state directly that

(i) R. V. Bishop, C. & M. 302. R. v. a charge was pending. In R. u. Crawley,

Pearson, 8 C. & P. 119, Coleridge, J., infra. 12 Cox, 163, an indictment for perjury on

{j) See R. V. Roper, 6 M. & S. 327 ; 1 proceedings before justices in petty ses-

Stark. (N. P.) 518. R. v. Benson, 2 Camp. sions, for stealing suet, was held defective

508. R. V. Powell, Ry. & M. 101 : where because it did not allege felonious taking,

the indictments erroneously stated the Sed qumre.
names of one or more of the parties to an

CHAP. 1.1 Of Perjury. 487

c. 100, s. 20, this strictness is relaxed, and the competeiice of the Court
is matter of proof {f). It is not necessary to set out the commission or
authority of the Court or person {q). But where the Court, &c., is of
limited jurisdiction (r) enough should be stated to shew that its jurisdic-
tion attached (s). In the case of an oath taken before justices of the peace,
the indictment should specify the justices before whom it was sworn,
and for what place and purpose they were acting {t).

On an indictment charging the commission of perjury on the hearing of
an appeal, before commissioners of assessed taxes, that a notice of appeal
had been given to the ' assessors,' whereas, under the relevant statute
(43 Geo. III. c. 99), the notice of appeal was to be to the surveyor or com-
missioners, and the commissioners were to dismiss the appeal unless
such notice had been given (s. 25), it was held, that the indictment on the
face of it shewed want of jurisdiction to hear the appeal {xi). In cases of
perjury on affidavits before commissioners of oaths, the circumstances
under which the oath came to be administered should be stated {v).

In R. V. Callanan {w), an indictment for perjury in an affidavit alleged
that the defendant did take his corporal oath before F. J. C. (he the said
F. J. C. then and there having sufficient and competent power and
authority to administer the said oath to the defendant in that behalf),
and that the defendant did before the said F. J. C, as such commissioner
as aforesaid, depose, &c. The indictment did not state the cause for or
in respect of which the affidavit was made (w). It was contended (in
arrest of judgment) that the indictment was bad, as it did not describe
the official station of the person before whom the defendant was sworn.
It was, indeed, stated that he made affidavit of certain matters before
F. J. C, as such commissioner as aforesaid ; but he had not been before
mentioned as a commissioner, and therefore that averment could not
cure the defect. Abbott, C.J. : ' Looking at the Act of Parliament,
2-3 Geo. II. c. 11 {x), we find that all that is required to be set out in
indictments for perjury is the substance of the offence charged, and by
what Court or before whom the oath was taken, averring such Court or

(p) R. u. Dunning, L. R. 1 C. C. R. 290, an allegation that G. came before named

295. justices, and exhibited to them an infor-

(q) 14 & 15 Vict. c. 100, s. 20, ante, p. 482. mation oath, was held not sufficiently to

(r) Where a judge has general jurisdio- shew that the oath was sworn before the

tion, he must be taken to have had juris- named justices.

diction in the particular case, unless the (u) Anon., 1 Cox, 50, Patteson, J.

contrary appears. Ryalls v. R. [1851], 11 (v) R. v. Macdonald, 21 Cox, 70, Darling,

Q.B. 178. The contrary rulings in R. v. J.

Lewis, 12 Cox, 163, and R. v. Willis, 12 (w) 6 B. & C. 102 ; 9 D. & Ry. 97. In

Cox, 164, seem to be erroneous. In Ryalls R. v. Macdonald, 21 Cox, 70, Darling, J.,

u. R. the argument turned on the use of the held that in the case of perjury assigned on

word ' month ' in the indictment, in refer- an affidavit before a commissioner of oaths,

ring to proceedings under s. 37 of the Solici- the circumstances under which the oath

tors Act, 1843, in which the words ' calen- was administered should be set out. This

dar month ' are used. At common law ruling seems inconsistent with R. v. Calla-

month is presumed to mean lunar month, nan and R. v. Dunning, L. R. 1 C. C. R.

Vide ante, p. 3. 290, ante, p. 486.

(a) e.g., that justices were acting for a (x) Superseded by the provisions of 14 &

particular division of a county, when the 15 Vict. c. 100, s. 20, ante, p. 482, and

act in question must be done in that divi- repealed in 1867 (S. L. R.). As to the

sion in petty sessions. R. v. RawUngs, general authority to administer oaths, see

8 C. & P. 439, Parke and Patteson, JJ. 14 & 15 Vict. c. 99, s. 16, ante, p. 460.
(t) R. V. GoodfeUow, C. & M. 569, where

488 Of Offences against the Administration of Justice, [book vii.

person to have competent authority to administer the same, without
setting forth the commission or authority of the Court or person before
whom the perjury was committed. It is, therefore, to be considered
whether the present indictment has set forth all that is required by the
statute. It sets forth the substance of the matter sworn, the person before
whom the oath was taken, and avers that he had authority to administer
it. The indictment does, therefore, contain all that is required by the
words of the statute; and taking into consideration the object of the
Act, which was framed to remove the difficulties before felt by reason of
the averments and matters which were usually set out in indictments
for perjury, we ought not to require more than the words of the legislature
have made necessary. When a case of this sort comes on for trial, the
prosecutor must prove the situation of the person before whom the oath
was taken, and the nature of his authority. I am, therefore, of opinion,
that the indictment is sufficient if it contains the name of the person, if
the defendant was sworn before a person, or of the Court, if he was
sworn before a Court. There is not, then, any reason for granting this
application ' («/).

In Overton v. R. (2), the indictment stated that at the time of the
taking of the false oath by J. 0. thereinafter mentioned, R. L., F. D. P., and
H. S. G. were commissioners of assessed taxes in and for the district of
the hundred of K., in the county of W., and thereupon heretofore, to wit,
on, &c., at, &c., in the district and county aforesaid (at a meeting then
and there held by the commissioners aforesaid for the purpose of hearing
and determining appeals against the certificate of supplementary charges
made by one J. L., crown surveyor, in pursuance of the said Acts), a certain
appeal of one W. H. of C, in the district and county aforesaid, in due
form of law came on to be heard. The indictment then averred that
the defendant on, &c., at, fee, appeared before the said commissioners
as a witness for and on the behalf of the said W. H., on the hearing of the
said appeal, and was then and there sworn, &c., before the said R. L.,
F. D. P., and H. S. G., so being such commissioners as aforesaid, that the
evidence which he the defendant should give upon the hearing of the

(y) This case having been much relied county of Middlesex, came in his proper
upon in Overton w. R., im/ra, and the record person, &c., on, &c., at, &c., before F. J.
examined, I have thought it right to insert Chell, gentleman, and the said defendant
the following statement of the first count, then and there, to wit, on, &c., at, &c., was
which I took from the record. The indict- duly sworn, F. J. Chell (he the said F. J.
ment stated that C. C, contriving and in- Chell then and there having sufficient and
tending to injure one T. S., and in order to competent power and authority to admin-
obtain a rule of the Court of B. R., whereby ister the said oath to the said C, C. in that
it might be ordered by the said Court that behalf), and the said C. C. being so sworn as
the said T. S. should shew cause why a aforesaid, falsely, &c,, did then and there
certain judgment signed on a warrant of before the said F. J. Chell, as such corn-
attorney in a cause in the said Court of S. missioner as aforesaid, depose, swear, and
against C, and the execution issued there- make affidavit in writing, amongst other
on, should not be set aside, and the said things, in substance, &c. The indictment
warrant of attorney be delivered up to be then set out the affidavit : ' all which said
cancelled, and why the proceeds of the said several matters and things so deposed and
execution should not be restored to the said sworn by the said C. C. as aforesaid were,
C. C, and why the said T. S. should not pay and each of them was material for the
the costs of that application, and that in obtaining and supporting the said rule,'
the meantime the said proceeds should C, S. G.
remain in the hands of the sheriff of the (z) 4 Q.B. 83 : 12 L. J. M. C. 61.

CHAP. 1.] Of Perjury. 489

said appeal should be the truth and nothing but the truth (they the
said commissioners then and there having authority to administer the said
oath, &c.). The indictment then proceeded to aver the materiality,
the giving the evidence, &c. The defendant having been convicted,
a writ of error was brought, and one of the errors assigned was, that it
did not appear that the said appeal was an appeal against such a certifi-
cate as in the said indictment mentioned, or that the same appeal was
such an appeal as the said commissioners or any of them had power,
authority, or jurisdiction to determine, and if they had no such power,
&c., they had no jurisdiction to administer the said oath. The indict-
ment was held bad upon this ground, and the judgment reversed (a).

In E. V. Lavey (&), it was said that in Overton v. R. the Court con-
sidered that there was no averment that the oath was administered in
the course of a judicial proceeding.

In R. V. Lavey (6), the indictment alleged that ' a certain action of
contract ' was pending in a County Court, and that the defendant was
duly sworn before the judge of the said Court, ' then and there having
sufficient and competent authority to administer the said oath to her
in that behalf.' It was objected that there was no averment that the
action was one over which the County Court had jurisdiction, and that
no intendment could be made that an action pending in an inferior Court
was one over which the Court had jurisdiction. But the Court of Ex-
chequer Chamber held that the alleged defect, in the averment of the
substance of the charge was supplied by necessary implication by the
averment of the competency of authority in the judge to administer
the oath, which necessarily implied that he had jurisdiction over the
action (h).

This decision was followed in the Irish case of R. v. Lawlor (b), where
an indictment for perjury at quarter sessions in Ireland alleged that a
certain civil bill came on to be tried in due form of law before an assistant
barrister, and alleged the oath to have been taken before the said assistant
barrister, he having sufficient and competent authority to administer
the said oath ; an objection that the indictment ought to have stated
that the civil bill was for a cause of action within the jurisdiction of the
Court was overruled.

In Walker v. R. {d), the indictment alleged that a petition for protec-
tion from process was, under and in pursuance of 5 & 6 Vict. c. 116, 7 & 8
Vict. c. 93, and 10 & 11 Vict. c. 102, filed and presented in the County
Court of Staffordshire at W. by the prisoner ; and that the prisoner
afterwards duly received an order for protection from process, and that
afterwards, whilst the proceedings upon and in respect of the said insolvency
were pending in the said County Court, to wit, at the time of filing the
said petition and schedule, the prisoner came before H. K., at the Court
at W., and within the jurisdiction aforesaid, for the purpose of making

(a) Many other errors were assigned, but necessary for us to say how we should de-
not determined by the Court. cide the present case if it were not distin-

(b) Ex. Ch. 17 Q.B. 496. See the indict- guishable from that, we should require
ment, 3 C. & K. 26. Overton v. R., supra, further time for consideration.'

was mainly relied on, in support of the ob- (c) 6 Cox, 187 (C. C. R. Ir.).

jeotion, and the Court observed ; ' If it were Id) 8 E. & B. 439. I

490 Of Offendes against the Administration of Justice, [book vir.

an affidavit and verifying on oath his said petition and schedule (H. K.
being a commissioner to administer oaths in chancery, and duly em-
powered to act in the matter of the said insolvency, and to take the oath
of the prisoner), and was duly sworn and took his oath that the affidavit
he then made was true (H. K. having competent authority to administer
the said oath). The indictment then alleged the materiality of certain
matter, and that the prisoner falsely swore, &c. It was objected on
error that the indictment did not shew that there was jurisdiction to
administer the oath, as it did not allege that the prisoner had resided
within the jurisdiction of the Court for six calendar months next pre-
ceding the filing of the petition as required by 10 & 11 Vict. c. 102, s. 6
(rep.). But it was held that the indictment was good (e).

In R. V. Dunning (/), R. v. Callanan and Lavey v. R., were accepted
as laying down the correct rule as to describing the offence.

The ifflode of Taking the Oath.— Every count should expressly state
that the defendant was sworn {g). It is enough to say that he was duly
sworn {h). Where it was averred that he was sworn on the Gospels, and
he appeared to have been sworn in the Scotch form, without kissing the
book, the variance was considered fatal, but the averment was held
to be proved by its appearing that he was previously sworn in the
ordinary mode (i).

The indictment should aver that the defendant ' wilfully and corruptly '
swore (j). In R. v. Stevens (k) the first count of the indictment stated
that the defendant on the trial of an indictment against J. H., intending
to injure J. H., and to cause him to be wrongly convicted, appeared as a
witness and was sworn, and ' then and there falsely and maliciously gave
false testimony against J. H., by then and there deposing and giving
evidence,' &c. The fifth count, the only one that differed materially
from the first, alleged that by means of the false testimony in the first
count mentioned, J. H. was found guilty ; that a rule nisi for a new
trial was granted ; that the defendant, intending to hinder the said
rule from being made absolute, came before a commissioner and was
sworn, and being so sworn, wickedly, wilfully, and corruptly did depose,
swear, and make affidavit in writing, in substance that the evidence
which he, J. S., had given on the said trial was true ; whereas the evidence
which the said J. S. had given on the said trial was not true, but was
false in the particulars in the said first count of this inquisition assigned
and set forth. The defendant having been convicted, a rule was obtained
for arresting the judgment, and after argument, Abbott, C.J., delivered
the judgment of the Court as follows : ' I am of opinion that this rule
must be made absolute. As to the first class of counts, the objection
is that they do not charge that the defendant swore wilfully or corruptly.
Every definition of perjury is swearing wilfully and corruptly that which

(e) Wightman, J., said : ' Suppose the (/) L. R. 1 C. C. R. 290, ante, p. 486.

petitioner, not so residing, had sworn in his {g) E. v. Stevens, 5 B. & C. 246.

petition that he did ; would that be per- {h) R. v. M'Carthur, Peake (3rd ed.) 211,
jury ? ' It was admitted that it would. Kenyon, C.J.

Lord Campbell, C.J. : ' Then such a petition (i) Id. ibid,

would give the Court jurisdiction to inquire (/) Vide ante, p. 477.

into the truth of the petition in thatrespeot.' {k) 5 B. & C. 246.

CHAP. I.] Of Perjury. 491

is false. Whether the word maliciously might supply the place of either
wilfully or corruptly, it is not necessary to determine, for neither of those
words is found in the counts in question, and Cox's case (I), which has
been referred to, proves at all events that such counts are insufficient.
I now come to the consideration of the last count. It is in a form per-
fectly novel ; it was intended to allege perjury in an affidavit made in
this Court. In the ordinary course of pleading, the first step would
have been to charge that there had been a trial, and that the defendant
was sworn as a witness ; the second, that he swore such and such things ;
the third, that the matter was false, and so on. Here there is no distinct
averment that the defendant was sworn as a witness, or of what he swore.
But it is said that the fact of his having been sworn must be taken by
intendment. Were we to do that, as we are desired to do, in support of
this indictment, we should furnish a precedent for a very loose and
insufficient mode of charging a very serious offence, which has always
hitherto been required to be charged with great certainty and parti-
cularity. I think that these novel attempts in pleading are not to be
encouraged, and that the judgment must be arrested.'

The False Evidence. — It has never been necessary in indictments for
perjury (as it is in libel) (m) to set out the tenor of what the defendant
is alleged to have sworn. In indictments for perjury ' whether in an
affidavit (m) or in oral evidence (w) it is sufficient to state the substance
and effect of the false oath ' (m). But where such evidence is not con-
tinuous the indictment should not set it out as continuous, but should
indicate that the statements alleged to be false were separated by other
intervening evidence. Even where it is set out as continuous without
shewing that it was not so in fact, the variance between the indictment and
evidence has been held not to be fatal, unless the intervening matter
varies the effect of the matter set out (m). An indictment for perjury
committed on the trial of an action for assault and battery, charged
the defendant with having sworn that the plaintiff spat in the defendant's
face before the defendant struck him, and that he, the defendant in the
indictment, had not said certain words, and assigned perjury on both
statements. The evidence given by the defendant on the former trial
contained all the matter charged as perjury, but other matter intervened
between the statement as to the spitting, and that as to the words.
Abbott, C.J., held that what intervened did not vary the effect of
what was stated (n).

Where a count in an indictment for perjury set out continuously
the substance and effect of what the defendant swore when examined
as a witness, EUenborough, L.C.J., held it necessary in support of this
count, to prove that in substance and effect he swore the whole of that
which is thus set out as his evidence, although the count contains several
distinct assignments of perjury. It was urged in support of the prosecu-
tion that reddendo singula singulis, the defendant was charged with
swearing separately in answer to all the questions that were mentioned

_ (l) 1 Leaoh, 71, where ' falsely, mali- (m) R. v. Callanan, 6 B. & C. 102, Abbott,

ciously, wickedly, and corruptly ' were C.J.
held to imply ' wilfully.' (n) R. u. Solomon, By. & M. 252.

492 Of Offences against the Administration of Justice. [BOOK vn.

in the indictment. But Ellenborough, C. J., said : ' Suppose you had
undertaken to set out the tenor of what the defendant swore, and it
should appear by the evidence that he had not sworn a material part
of that which was set out, would not this have been fatal ? Having
taken upon you to state the substance and effect of what he swore, you
are not bound down to precise words ; but must you not prove that
he swore in substance and effect the whole that you have stated ? You
aver that part of the defendant's evidence concerning the assurance
, given by Lord H. to be material, and you have not proved that he swore
to any such assurance. Did you ever know the rule reddendo singula
singulis applied to a misrecital ? Is there any authority to shew that
under secundum substantiam you are not bound to prove the substance
of what you state, as under secundum tenorem you are bound to prove
the tenor ? To hold otherwise would be to introduce a most dangerous
latitude into criminal proceedings. I am decidedly of opinion that you
have failed in the proof of a substantial allegation. It is essential to the
security of innocence that words set out in the record should be either
literally or substantially proved. A person giving his assurance generally
and giving his assurance for the performance of a particular stipulation,
are allowed to be entirely different. If a man swears falsely to several
material questions, these may be included in distinct counts ' (p). But
this decision is qiiestionable (g).

An indictment for perjury alleged that the prisoner falsely swore to
' in substance and to the effect following,' and then set out in totidem
verbis and in the first person a deposition of the prisoner in the English
language. It appeared that the prisoner was examined in Welsh through
an interpreter, and that his examination was translated into English,
taken down in writing, and signed by the prisoner ; and this written

(p) R. V. Leefe, 2 Camp. 134. The the defendant upon his return to the corn-
learned reporter says : ' I find no decision or mittee of the said J. L. communicated to
dictum in the books as to the evidence of them what had so passed between the said
the words sworn which is necessary to sup- Lord H. and him ; and that the said com-
port an indictment for perjury. For the mittee dispersed to carry the said agree-
general principles upon this subject, vide. ment into effect ; and that the said J. L.
2 Hawk. c. 46, ss. 34, 35, 36. Compagnon asked the defendant if the expenses were
V. Martin, 2 W. Bl. 790. ' secured ; and that the def endaijt told the

(}) The count upon which the question said J. L. his lordship had given his assu-
in R. V. Leefe turned, alleged that a com- ranee that it should be so. The assignments
mittee was appointed and met to try the of perjury negatived each of these state-
merits of apetition complaining of an undue ments, and it was proved that everything
election, that certain questions were mate- alleged was sworn, except the last words
rial, and that the defendant swore ' touch- ' that it should be so.' As it is clearly
ing the said material questions, and the settled that a defendant may be convicted
merits of the said petition,' in substance of any one distinct assignment of perjury,
and effect as follows : that he, by the direc- though acquitted of all the rest (see p. 502),
tions of J. L., waited upon Lord H. and there seems no reason why proof of having
proposed to the said Lord H. that the said sworn the matter negatived by one assign-
J. L. would decline upon the expenses being ment should not be sufficient. In the case
paid him, including the previous expenses of obtaining goods by false pretences, it is
of the day before ; that Lord H. agreed clearly settled that proof of any one false
that the said expenses should be paid, in- pretence, is sufficient, vide poH, Vol. ii. p.
eluding the expenses that had been incurred 1575 et scq. ; and that is a stronger case,
at different inns in the town ; that J. L.'s because there the indictment in fact avers
voters were to be applied to in consequence that all the pretences operated towards the
of that arrangement for the purpose of obtaining the goods. C. S. G. See R. v.
voting for the said Lord H., and that the Rhodes, 2 Ld. Raym. 886, post, p. 502,
defendant enumerated the expenses ; that note (2).

CHAP. I.] Of Perjury. 493

deposition was set out in the indictment. It was submitted that the
evidence ought to have been set out in Welsh with a translation in English.
Williams, J., said : ' In perjury it is only necessary to prove " the substance
and effect." The indictment charges that the prisoner deposed and
swore in substance and to the effect there stated. It was not necessary
in this indictment to have set forth the deposition in totidem verbis ;
still the substance and effect of what the prisoner swore in the Welsh
language may be proved ; and if that is in substance and to the effect
the same as is stated in this indictment, that will be sufficient ' (r).

An indictment stated that upon a certain information upon oath,
entitled ' the information,' &c., the defendant wilfully deposed in sub-
stance and to the effect following : ' the defendant (meaning C. D.) I
am certain is one of the persons that assaulted and ill-treated my wife,'
&c. The information began, ' The information and complaint of J.,
the wife of C. E. G., and of the said C. E. G., made on oath,' &c. ' And
first, the said J. G. for herself saith that the defendant is one of the persons
who assisted W. J. S. and others in handcuffing and otherwise assaulting
me on,' &c. (Signed) ' J. G.' ' And the said C. E. G. sworn says, " the
defendant, I am sure, is one of the persons that assaulted and ill-treated
my wife," ' &c. It was held that, as what the defendant swore was set
out in substance, it was sufficient (s).

Where an indictment for perjury alleged that an officer of excise
went before two justices of the peace, and gave the said justices to under-
stand and be informed that ' W. S., victualler, being a brewer of beer or
ale for sale,' did neglect to make a declaration of the quantity of beer
brewed ; and the words in italics were not found in the information
when produced ; the variance was held fatal, as the meaning of the
indictment was that ' S. being a brewer neglected ' (t).

Ambiguity. — If an indictment uses a word of equivocal meaning
the meaning in which it is used must be collected from the context of
the sentence in which it occurs. An indictment for perjury alleged that
a commission of bankruptcy was issued against the defendant, under
which he was duly declared bankrupt, and that afterwards he preferred
a petition to the chancellor, stating (amongst other things) that a com-
mission had issued, that the petitioner, on March 1, 1821, was declared
bankrupt, and that at the several meetings before the commission the
petitioner declared that the bill of exchange (on which the commission
had issued) was not due, &c. But the allegation in the petition was that
at the several meetings before the commissioners the petitioner declared
that the bill was not due. It was contended that the words ' commis-
sion ' and ' commissioners ' were not convertible terms ; that the word
' commission ' denoted the authority under which the parties acted, and
therefore the variance was fatal. Abbott, C. J., said : ' The objection
is that there is a variance between the petition set forth in the indictment
and that which is given in evidence at the trial. Now, in a proceed-
ing of this kind it is not necessary to set out in the indictment wrtom
the tenor of the petition ; it is sufficient if it be set out truly in substance

(r) R. V. Thomas, 2 C. & K. 806. C.J.

(3) B. V. Grindall, 2 C. & P. 563, Abbott, (t) R. v. Leech, 2 Man. & By. 119.

494 Of Offences against the Administration of Justice, [book vii.

and efEecfc. The petition, as set out in the indictment, purports that at
the several meetings before the commission, the petitioner declared in
the hearing of the said assignee that the bill of exchange given to G. D.
for the debt was not due at the time when he struck the docket. Now
the allegation in the petition, which was proved in evidence, was that
at the several meetings before the commissioners the petitioner declared
so and so, and the question is whether that is a fatal variance. The
word " commission " is one of equivocal meaning ; it is used either to
denote a trust or authority exercised, or the instrument by which the
authority is exercised, or the persons by whom the trust or authority is
exercised. And if it may denote the persons exercising the authority,
we must collect from the context of the sentence in which the words
" before the commission " occur, and of the other parts of the petition,
whether it was used in that sense or not.' After stating the indictment
the chief justice proceeded : ' Now, if the word commission as there used
was intended to denote the commission itself, it would follow that the
several meetings took place before any commission issued ; but that
is impossible, because in that case the petitioner could not have made
his declaration in the hearing of the said assignee. Then, if that cannot
be the meaning of the word commission, we must construe it in the
other sense which it is capable of bearing, namely, as denoting the
persons to whom the authority was given ; and if it be so construed,
there was no variance between the petition set forth in the indictment
and that which was given in evidence; the consequence is, that there
must be judgment for the Crown ' (m).

In an indictment for perjury the averment stated that the prisoner
swore he saw W. ' about fifteen minutes after the hour of 11 o'clock in
the forenoon,' whereas it was proved that he had sworn that he saw W.
about a quarter past eleven on the day in question, without stating
whether it was the forenoon or the afternoon. Day, J., held that the
averment in the indictment was not proved, and directed an acquittal {v).

Where a complaint having been made ore tenus by a solicitor in the
Court of Chancery, of an arrest in returning home after the hearing of a
cause, the indictment stated that, ' at and upon the hearing of the said
complaint,' the defendant deposed, &c. This was held a sufficient aver-
ment that the complaint was heard (w).

Materiality. — Averments of materiality are not rendered unnecessary
by 14 & 15 Vict. c. 100, s. 20 {ante, p. 482) (x), and an omission of such
an averment, when it is needed, appears to be a matter of substance
not curable by amendment (y). Either it must clearly appear on the
face of the indictment (z), or it must be therein expressly alleged that
the matter, in respect whereof perjury is assigned, was material, not
merely might be material (a). It is, however, enough to allege that the

(m) R. v. Dudman, 4 B. & C. 850. assigned, or documents from which it is

(w) R. V. Bird, 17 Cox, 387. evident that the false evidence was impor-

{w) R. V. Aylett, 1 T. R. 70. tant, the express allegation may be dis-

(a;) R. V. Harvey, 8 Cox, 99. pensed with. See 2 Chit. Cr. L. 307, citing

(j;) 14 & 15 Vict. i;. 100, s. 25. R. v. Tremayne, 139, &c. R. v. Crossley, 7 T. B.

Harvey, ubi sup. 315. Ryalls v. R., 11 Q.B. 781. R. v.

(z) R. V. Aylett, 1 T. R. 69. If the false- Harvey, 8 Cox, 99, Byles, J.

hoods affect the very circumstance of (a) R. <;. Bird, post, p. 500.

innocence or guilt, or where the perjury ia

CHAP. I.] Of Perjury. 495

particular question became a material question without setting forth in
the indictment so much of the proceedings of the former trial as will
shew the materiality of the question on which the perjury is assigned (b).
Thus statements, that, at a Court of Admiralty Sessions, J. K. was ' in
due form of law tried upon a certain indictment then and there depend-
ing against him ' for murder, and that ' at and upon the said trial it
then and there became and was made a material question,' whether, &c.,
were held sufScient averments that the perjury was committed upon the
trial of J. K. for the murder, and that the question on which the perjury
was assigned was material on that trial (c).

In E. «. Nicholl {d), Parke, J., said : ' It is part of the definition of
perjury that the false swearing is on some point material to the question
in issue. In an indictment this may appear either from the matter of the
suit, as shewn on the record, or by direct averment.' And in R. v.
Cutts (e), Campbell, C.J., said : ' An indictment for perjury must either
shew that the evidence alleged to be false was necessarily material to the
issue, or there must be a positive averment that it is material.' Where,
upon an indictment for perjury on a trial for felony, it was not alleged,
and did not appear that the matter sworn was material, it was held,
that if the original indictment had been set out, and it could plainly
have been collected that the matter was material, the indictment would
have been sufficient without an averment of materiality, but that as this
was not the case the indictment was bad (/). Where an indictment
assigned perjury on defendant's denial (in an answer in Chancery)
that he had agreed, upon forming an insurance company of wliich he
was a director, &c., to advance £10,000 for three years to answer any
immediate calls, and there was no averment that this was material,
nor did it appear for what purpose the bill was filed, to which the answer
had been sworn, nor what was the prayer, judgment was arrested (gr).

An indictment for perjury alleged that on the trial of a certain issue
the defendant was sworn as a witness, and that on such trial certain
questions became material, that is to say, ' whether one J. K. had been
arrested by one J. L. ; whether the said J. L. had on the occasion of the
said alleged arrest touched the person of the said J. K. ; and whether the
said J. L. had on the occasion of the said alleged arrest put his arms
round the said J. K. and embraced him.' The indictment then charged
that the defendant swore falsely to the following effect : ' L. (meaning
the said J. L.) put his arms round him (meaning the said J. K.) and
embraced him (meaning the said J. K., and meaning thereby that the said
J. L. had on the occasion to which the said evidence applied, touched the
person of the said J. K. ).' A writ of error was brought by the defendant

(6) R. V. Dowlin 5 T. R. 311. Lavey v. Bayley, J. The indictment was shewn to

R., 2 Den. 504 ; 17 Q.B. 4fl6. R. v. Dun- Lord GifEord, M.R., and Mr. Bell, K.C., who

ning, L. R. 1 C. C. R. 290. both thought that upon the face of the in-

(d) 1 B. & Ad. 21. question was material or not ; and the

(e) 4 Cox, 435. See also R. v. Scott, 13 materiality of all questions in a chancery
Cox, 594. suit depending upon the purpose for which

(/ ) R. V. M'Kerou [1792], 5 T. R. 316, the suit is instituted, the Court held that
and MS. Bayley, J. the indictment could not be supported.

iJg) R. V. Bignold [Trin. T. 1824], MS. MS. Bayley, J.

496 Of Offences against the Administration of Justice, [book vii.

on conviction, and the error specially assigned was that the materiality
of the evidence alleged to have been false was not sufficiently averred
in the indictment ; and it was contended that in the evidence, on which
the perjury was assigned, there appeared neither time, place, nor circum-
stance to connect the statement with the alleged arrest. The whole
might have turned upon some former and entirely different transaction.
And the innuendoes did not remove the difficulty ; for there was no
averment in them that it was on the occasion of the alleged arrest ; it
merely imported that the evidence was given concerning an occasion,
which was not identified with that in question. Bayley, J., said : ' An
indictment must be good without the help of argument or inference.
In the case of perjury the indictment must shew either by a statement
of the proceedings or by other averments, that the question to which
the offence related was material. That is not shewn here in either way.
The words on which perjury is assigned, if taken without the innuendoes,
have no necessary reference to the occasion of an alleged arrest; nor is
there anything in the indictment to connect them with it. It is contended
that the inquiry, to which part of the evidence was an answer, would not
have been relevant if applicable to any other matter and occasion than
those now in question ; but we know nothing of the merits of the case
except from the indictment. The innuendoes rather introduce greater
doubt than greater certainty, and lessen the force of the argument that
only one occasion could have been contemplated. I am, therefore, of
opinion that the indictment is defective, and- the judgment ought to be
reversed ' (h).

Where an indictment stated that a suit was pending in the Court
of Chancery, and that a commission was issued to certain commissioners
to examine witnesses upon interrogatories, and then set out the ninth
interrogatory, and averred that ' upon the examination of the defendant
upon the said interrogatories, it became, and was, material to ascertain
the truth of the matters hereinafter alleged to have been sworn to and
deposed by the defendant, upon his oath, in answer to the said ninth
interrogatory'; it was objected that the averment of materiality was
insufficient, there being no statement of the alleged perjury being material
to the chancery suit, or to any question in that suit. Coleridge, J.,
expressed some doubt whether the averment of materiality was sufficient,
and would have reserved the point if it had become necessary (i). And
where an indictment for perjury, after alleging that an information was
exhibited before two magistrates, and that the same information came
on to be heard before M. G. and J. S., two justices, and that ' upon the
hearing of the said information before the said M. G. and J. S., so being
such justices as aforesaid, it became and was material to ascertain the
truth of the matter hereinafter alleged to have been sworn to and stated
by the said J. S. upon his oath ' ; it was held that this averment of
materiality was insufficient (/).

(h) R. V. Nioholl, 1 B. & Ad. 21. cases suffice.'

(i) R. V. Hewins, 9 C. & P. 786. The (j) R. v. GoodfeUow, C. & M. 569, Patte-

form of the averment in this and the follow- son, J., after consulting Cresawell, J. See

ing case was taken from 2 Chit. Or. L. the averment of materiality in R. v. CaUa-

p. 307 a ; where it is said that this ' concise nan, ante, p. 488, note ( / ).
statement would, it should seem, in all

CHAP. 1] Of Perjury. 497

An indictment stated that, on the trial of an action of Meek v. Knight,
' it became and was a material qusstion, whether a certain bill of exchange,
bearing date, &c.' (here the bill was described) ' was accepted by the
said J. M., for the accommodation of the saidW. K., and without valuable
consideration to the said J. M. from the said W. K. ; and whether a certain
paper writing or memorandum, then and there produced, by and in the hand -
writing of the defendant, J. B., was really and truly executed by the said
W. K., by affixing his mark thereto at the time of the maJcing of the said
bill of exchange ; ' (the indictment then set out the memorandum) ' and
whether the said memorandum was read over by the said J. B. to the
said W. K., at the time of making the said bill of exchange as aforesaid.'
The indictment then alleged that the defendant swore that the said paper
writing or memorandum was duly executed by the said W. K., by affixing
his mark to the same, in the presence of the said J. B., on the day on
which the same bears date and at the time of the maJcing of the said bill of
exchange, and that the said memorandum was then and there read over
by the said J. B. to the said W. K. ' Whereas, in truth and in fact,
the said W. K. did not execute the said paper writing or memorandum
by affixing his mark thereto, in the presence of the said J. B., on the day
on which the same bears date, nor was the said memorandum read over
by the said J. B. to the said W. K. at the time of the making of the said
biU of exchange, nor was the said memorandum produced or shewn to the
said W. K. by the said J. B., at the time of making the said bill of ex-
change.' Upon a writ of error, brought after a general verdict of guilty,
the errors assigned were, that no perjury was assigned upon the question
alleged to have been a material question upon the trial, and that no perjury
was assigned upon any question alleged to have been a material question
upon the trial ; and the Court of Queen's Bench held that the indictment
was bad. The assignment of perjury, that the bill was not execiited on
the day on which the same bore date, departed from the statement of the
evidence, and the allegation of its materiality. And the assignment
of perjury, that the paper was not executed at the time of the making of
the bm, bore no relation to the allegations of the evidence of the defendant.
The statement of the evidence of the defendant, as well as the allegation
of the falsehood, were uncertain, as the words ' then and there ' might
refer to the two dates, the date of the memorandum and the day of the
making of the bill, and it might be consistent with the fact that it
never was read over on both days, or the defendant might never have
intended to say that it was (k).

An indictment alleged that E. S. filed his bill in chancery against the
prisoner, J. S. S., and J. S., whereby he prayed that a purchase by the
prisoner might be declared fraudulent and void, and that he might be
decreed to deliver up the contract to be cancelled, and then averred

{k) E. V. Burraston, 4 Jurist, 697. The stated to be a material question the prose-
Court expressed strong doubts whether it outor could abstain from stating any swear-
was possible to separate the three proposi- ing as to such matter, or assigning any
tions, which were said to have formed one perjury upon it. But it became unneoes-
question ; and Littledale, J., said that if it sary for the Court to decide either of these
was one assignment of perjury, and part points, as the indictment was held bad on
was bad, the whole was vitiated. It was the grounds stated in the text,
also doubted whether where a matter was

VOL. I.

498 Of Offences against the Administration of Justice, [book vii.

that it then and there became a material question whether the prisoner
did advise the said J. S., E. S., and J. S. S., that certain real estate,
including the premises described in the said bill, should be sold. It was
held that the averment of materiality was insufficient. There might
be very good reasons for setting aside the sale as fraudulent, quite inde-
pendently of any advice given by the prisoner ; and that being so, the
question was whether there was a sufficient averment of materiality,
and the words ' then and there ' were not sufficient to supply the omis-
sion of the words ' in the said suit,' or words to the same efiect (l).

An indictment for perjury alleged that H. L. stood charged before
T. S., a justice of the peace, with having on August 12 committed a trespass
by entering in the daytime on certain land in pursuit of game, and that
upon the hearing of the said charge, the prisoner appeared as a witness
for the said H. L., and was duly sworn to speak the truth touching the
said charge ; and that the prisoner upon the hearing of the said charge,
falsely swore that he did not see the said H. L., during the whole day of
August 12, and that ' at the time he the said prisoner swore as aforesaid it
was material and necessary for the said T. S., so being such justice as
aforesaid, to inquire of and be informed by the said prisoner whether he
did see the said H. L. at all during the said 12th day of August,' and it was
held that the indictment was bad ; for ' it is not stated that it was a material
and necessary question in the inquiry before the said T. S., to which the
false and corrupt answer was given. It may have been, therefore, con-
sistently with the averments in the indictment, material and important
for T. S. in some other matter, and not in the matter stated to be in issue
before him, to have put this question and received this answer. Now
as the offence of perjury consists in taking a false oath in a matter stated
to be in judgment before a Court or person having competent authority
to decide it, and as this indictment does not clearly and distinctly charge
that, it does not charge the offence of perjury ' (m).

An indictment for perjury said to have been committed on a trial for
rape alleged that it was a material question whether the prisoner ever got
one M. W. to write a letter for her, and whether or not she saw the said M. W.
at the house of S. L.'s father when the said letter was written ; and that the
prisoner falsely swore that she never got a M. W. to write a letter for her,
and that she did not see the said M. W. at the house of the said S. L.'s
father. Whereas the prisoner did get the said M. W. to write a letter
for her, &c. At the trial for rape, the prisoner was asked whether she
ever got M. W. (who was pointed out to her in court) to \vrite a letter
for her. She replied : ' No, I did not.' And repeated her denial, after
being shewn the letter, and also denied ever having seen M. W. at S. L.'s
father's house. The falsity of what she so swore was clearly proved and
the letter produced. It was objected, 1st, that the materiality of the
matters assigned as perjury was not sufficiently alleged ; 2nd, that the
reference to the letter was too vague and general, and not properly pointed
to the particular letter ; 3rd, that the references to M. W. and to S. L.'s
father's house were not properly introduced by an averment ; 4th.

(I) E. V. Cutta, 4 Cox, 435.

(m) B.. V. Bartholomew, 1 C. & K. 366. (All the judges.)

CHAP. 1.J Of "Perjury. i%

that the letter produced was not sufficiently identified with the state-
ments on the record to support them. The objections were overruled
at the trial, and, on a case reserved, it was urged that all the assignments
of perjury were defective in not identifying the M. W. spoken of in them
with the M. W. spoken of in the allegation of materiality ; but it was
held that the indictment was sufhcient : it averred that it was a material
question whether the prisoner got any M. W. to write a letter. That
averment comprehended every person of the name of M. W. The de-
scription therefore in this averment was larger than the description in the
assignments of perjury, and comprehended the M. W. there spoken of.
As to the objection relating to the letter, it was contended that it could
not possibly be material that the prisoner got Williams to write a letter.
But it was held that, as there was an express averment that it was material,
that averment let in evidence to prove its materiality, and when the
evidence was looked at it was clear that the letter was material (n).

An indictment for giving false evidence before a commissioner of
bankruptcy alleged that upon the examination of the prisoner it was
material to inquire what was the extent of the dealings of the prisoner
with ' one M., and how long he had known the said M.,' &c., and then
alleged that the prisoner solemnly declared that ' M. is the landlord of
No. 4, York-terrace,' &c. ' I have known M. two or three years,' &c.,
whereas the said person so described was the same person as one S. M. Legge,
and was the father of the prisoner, &c. It was objected, in arrest of
judgment, that there was nothing to connect the allegation of materiality
with the assignment of perjury, as there was no innuendo that M. meant
S. Legge ; and the judgment was arrested as the averment of materiality
was insufficient to connect it with the other parts of the indictment (o).

An indictment for perjury alleged that a cause came on to be tried
before a County Court judge, and that it became a material question
on the trial whether J. H. B. had, in the presence of the prisoner, signed
at the foot of a certain bill of account, purporting to be a bill of account
between a certain fii'm called ' B. and Co.' and J. W., a receipt for the
payment of the said bill, and that the prisoner falsely swore that J. H. B.
did in her presence sign the said receipt. It was proved that on the trial
the prisoner produced an invoice of goods, at the foot of which was a
receipt, which purported to bear the signature of B., and swore that B. in
her presence wrote and signed that receipt. B. had on other occasions
signed receipts in the presence of the prisoner at the foot of invoices.
It was objected that the indictment did not sufficiently specify the
account and receipt to which the evidence related on which the perjury
was assigned ; but, it was held that the indictment was sufficient, as it
was only necessary to refer to the receipt as introductory to making out
the materiality of the perjury (p).

Where an indictment for perjury alleged that the defendant swore
that he had not written certain words in the presence of one D., and

(n) R. V. Bennett, 2 Den. 240 ; 3 C. & K. express notice was taken of the other

124 ; 5 Cox, 207. It is trusted that the points.

text represents substantially the grounds of (o) R. v. Legge, 6 Cox, 220. The Re-

the decision on the two points ; but all corder, after consulting Parke, B.
three reports are verv unsatisfactory. No (p) R. v. Webster, Bfell, 154.

2k2

500 Of Offences against the Administration of Justice, [book vll.

alleged that it was a material question whether the defendant had so written
such words in the presence of D. ; it was held that the indictment was
sufficient ; for the question whether the words were written in the presence
of D. might have been material ; and it was impossible to assume the
contrary against the record {q).

Where an indictment for perjury on the taking of an inquisition before
a coroner alleged that it ' was, upon the taking of the said inquisition, a
material question whether,' &c., it was held that the statement suffi-
ciently imported that the question was material to the subject-matter
of the inquisition (r).

An indictment alleged that it was a material question whether, before
the execution of a bond, it was agreed between certain persons that the
prisoner should lend W. £1500 before the title to certain premises was
investigated by the prisoner, and before any mortgage thereof was exe-
cuted to secure repayment thereof, and that they should execute the
bond to secure the prisoner the repayment of the said sum and interest
in case the title should turn out to be defective, or the mortgage should
not be duly executed ; but if the title turned out to be good, and the
mortgage was executed, they were not to be liable on the bond ; and
then alleged that the prisoner falsely swore that nothing was said by
him or in his hearing about the bond being a temporary security, or a
security until the mortgage was prepared, ' or any thing of the kind.''
It was objected that, according to the agreement as stated, the bond
would be binding until the title turned out to be good, which would not
necessarily be when the mortgage was executed, so that the bond would
not necessarily be a temporary security. But it was held that the exact
terms of the alleged agreement were not material ; for the prisoner swore
that there was no agreement ' of the kind ' (s).

An indictment for perjury alleged that, on the trial of an indictment
for an assault, with intent to commit a rape, and for a common assault,
upon one A. B., the said A. B. swore that she was the wife of one J. B.,
and had been married to him at such a time and such a place, whereas
she was not the wife of the said J. B. and had never been married to him.
The indictment contained an allegation of materiality, which was insen-
sible in consequence of an error in copying it from the draft ; it was,
nevertheless, contended that it sufficiently appeared on the face of the
indictment, that the evidence on which the perjury was assigned was
material on two grounds. First, that on any indictment for an assault,
with intent to commit a rape, it was most material, not only as affecting
the credit of the witness, but as going to the very gist of the charge itself,
whether the party assaulted had falsely sworn that she was a married
woman. Secondly, that by swearing that she was the wife of J. B.,
the prosecutrix supported the allegation that the assault was upon
' A. B.,' which would have failed if she had admitted that she was not
married to J. B. But it was held that it did not sufficiently appear that
the evidence was material ; it might or might not be material", and that was
not sufficient {t).

(q) R. V. Schlesinger, 10 Q.B. 070. [t] R. v. Ann Bird, Gloucester Spr. Ass.

(r) R. V. Kimpton, 2 Cox, 296, Parke, B. 1842, Cresswell, J. The indictment for the
(s) R. V. Smith, 1 F. & I'. 98, Erie, J. assault simply stated the assault to be upon

CHAP. I.] Of Perjury. 501

Where an indictment stated that a cause was set down for trial,
and appointed for a particular day, and that the defendant in that cause,
before that day, made an affidavit before a judge, in which he stated
that he had .a good defence to the action, which he would be able to
prove at the trial, and that some of the bills on which it was brought
were void for usury, and then assigned perjury on these allegations ; it
was objected that the indictment was clearly bad : the only manner in
which such an affidavit could be in a judicial proceeding, or the matters
contained in it become material, would be upon an application to post-
pone the trial of the cause ; but the indictment did not shew that any
such application was made or intended. Tenterden, C.J., however, held
that the occasion, on which the affidavit was intended to be used, might
be sufficiently collected from the indictment, and refused to stop the trial,
as the defendant, if there was any weight in the objection, might have the
benefit of it after he was convicted (m).

In R. V. Gardiner («), the seventh count of the indictment charged
that the defendant, intending to aggrieve C. F. E., came before a certain
magistrate (having authority, &c.), falsely, &c., did depose, swear, and
charge, and gave the said magistrate to be informed that the said C. F. E.
had been guilty of an abominable crime, then capital, the details of
which charge were then set forth as deposed to. It was objected that
this count did not distinctly shew any proceeding pending before the
magistrate ; that they ought to have averred directly that a charge was
pending, and R. v. Pearson (w) was cited. But Patteson, J., thought
that case distinguishable, because of the words ' upon an information
and examination,' &c. {x). It was also argued that, although the state
of C. F. E.'s dress was averred in the count to be material, yet by such
averment was meant, not whether the flap of his trousers was unbuttoned,
but the trousers generally ; and that the count alleged that the prisoner
charged the capital offence, whereas, by his information, he appeared
to have charged only an attempt. The last two objections were taken
before verdict, and did not apply in arrest of judgment, as was also an

Ann B., without any further description. v. Fowls, 4 C. & P. 592, Tenterden, O.J.

The learned judge expressed an opinion In R. v. Purchase, C. & M. 617, Patteson,

that the indictment was insufficient before J., after consulting Cresswell, J., refused to

the case went to the jury, but he left it to allow any objection to be taken to an in-

them, and after they had found the priso- dictment for embezzlement, except upon

ner guilty, arrested judgment, in order that demurrer or in arrest of judgment, and it

the prosecutor might bring a writ of error seems most in accordance with the regular

if he thought fit. 'It sometimes happens course of proceeding that such a course

that upon an objection taken to an indict- should be adopted in all cases.' C. S. G.

ment before verdict, the judge who tries the Writs of error in England have been abol-

case, if he considers the objection valid, ished by the Criminal Appeal Act, 1907,

directs, an acquittal ; but the course and the prosecutor has no means of relief

adopted by the learned judge in this case if an indictment is wrongly quashed,

is certainly the better course, as, if the de- («) E. v. Abraham, 1 M. & R. 7. The

cision be incorrect where the judgment is defendant was convicted, but did not

arrested, it may be reversed upon error ; appear to receive judgment when called

whereas if the prisoneris acquitted, and the upon, and no motion in arrest of judgment

decision is incorrect, there is no means of was made.

correcting the error, and as the verdict of (v) 2 Mood. %fy ; 8 C. & P. 137.

the jury has been taken, it may be very (lo) 8 C. & P. 119, ante, p. 486.

questionable whether if a fresh indictment (x) The count is in the same form as that

were preferred a plea of autrefois acquit in 4 Wentw. 242 ; 2 Chit. Cr. L. 443.
might not be successfully pleaded. See R.

502 Of Offences against the Administration of Justice, [book vii.

objection whether the evidence of J. H. E. did not go to any material
fact sufficient to satisfy the rule as to two witnesses in cases of perjury.
On all these questions, Patteson, J., requested the opinion of the judges,
and all the judges present held the conviction good on the seventh count («/).
Falsity : Assignments of Perjury. — The indictment should expressly
contradict, and without any ambiguity, the matter falsely sworn to by
the defendant. An assignment in general terms seems to be demurr-
able. Possibly it might be supplemented by ordering particulars where
it is not demurred to or thus supplemented. General averment that
the defendant falsely swore, &c., upon the whole matter, is not enough :
the indictment must proceed by particular averments (or, as they are
technically termed, by assignments of perjury), to negative that which
is false. More than one assignment of perjury, in the same evidence,
may be included in the same count {z). It may be necessary to set forth
the whole matter to which the defendant swore, in order to make the rest
intelligible, though some of the circumstances had a real existence : but
the word ' falsely ' does not import that the whole is false ; and it is not
necessary to negative the whole, but only such parts as the prosecutor
can falsify, admitting the truth of the rest (a). In negativing the defend-
ant's oath where he has sworn only to his belief (h), it is proper to aver that
' he well lineiv ' the contrary of what he swore (c). An assignment of
perjury may, in some instances, be more full than the statement of the
defendant, which it is intended to contradict. Thus, where the fact in
the affidavit, in which the defendant was charged to have perjured him-
self, was, that he never did, at any time during his transactions with the
commissioners of the victualling office, charge more than the usual sum
of sixpence per quarter beyond the price he actually paid for any malt or
grain purchased by him for the said commissioners as their corn-factor ;
and the assignment in the indictment, to falsify this, alleged that the
defendant did charge more than sixpence per quarter /or and in respect of
such malt and grain so purchased ; it was objected that the words in
respect of might include lighterage, freight, and many collateral and
incidental expenses attending the corn and grain jointly with the charge
for the corn or grain, and, that bearing such sense, the defendant was
not guilty of perjury ; but the objection was overruled (d).

(j/) Most of the judges seem to have held contained many distinct assignments on

good other counts of the indictment which the going to the house, and the conversa-

had been challenged on similar grounds. tion, upon all of which evidence was given ;

(z) In R. V. Rhodes, 2 Ld. Raym. 886, and Patteson, J., directed the jury simply

887, the indictment contained several as- to consider whether the defendant had

signments in one count, all bad, except one been to the house, and if they were satisfied

on which a conviction took place. The that he had, to convict him, which they did.

Court refused to arrest judgment. Cf. R. MSS. C. S. G. R. t. Leefe, 2 Camp. 134,

V. Virrier, 12 A. & E. 317. R. v. Gardiner, seems to be wrong, in so far as it suggests

2 Mood. 95 ; 8 C & P. 737. Compagnon that distinct assignments of perjury must

V. Martin, 2 W. Bl. 790. In R. v. NichoUs, be in different counts.

Gloucester Sum. Ass. 1838, perjury was (a) R. v. Perrott, 2 M. & S. 385, 390.

alleged to have been committed by the de- See hereon White v. R. [1906], 4 Australian

fendant in evidence given on a trial for Commonwealth L. R. 152, 163.

larceny, in which he denied having been at (6) Ante, p. 476.

a particular house on a particular occasion, (c) 2 Chit. Cr. L. 312.

and denied having had a conversation with [d] R. v. Atkinson, Dom. Proc. 1785.

certain persons there. The indictment Bao. Abr. tit. ' Perjury ' (C).

CHAP. I.] Of Perjury. 503

An indictment alleged that it was material, on the hearing of an in-
formation before justices of the peace, to prove that cards were played
in the bar of a publichouse between the hours of six o'clock and eight
o'clock on a certain evening, and that the prisoner falsely swore that
he was in the bar of the said house from between the hours of six o'clock
and seven o'clock until nine o'clock in the said evening, and that he did
not play at any game at all, and that no cards or game of cards at all
were or was during all the said last-mentioned time or between the hours
aforesaid played therein ; whereas the prisoner did between the hours of
six o'clock and eight o'clock in the said evening play at a certain game
of cards. It was held that the indictment was bad. The prisoner might
have played at five minutes past six, and yet not have played from be-
tween six and seven until nine ; the words ' from between six and seven '
might be any time short of seven, five minutes or five seconds to that hour.
The indictment could not be read as averring that the prisoner swore that
he did not play at any time during that evening, but merely that he did
not play at a particular period of that evening, namely, from some period
before seven until nine. That might be perfectly true, and yet he might
have played between six and seven, and so may have played, as is
assigned in the indictment, between six and eight (e).

The averments introduced to negative the matter sworn ought to
be so distinct and definite as to inform the defendant of the particular
and precise charges which are intended to be proved against him. An
indictment for perjury committed in the Insolvent Debtors Court alleged,
that the defendant swore in substance that his schedule contained a full,
true, and perfect account of all debts owing to him at the time of present-
ing his petition ; whereas the said schedule did not contain a full, true, and
perfect account of all debts owing to him at that time. It was held that
the indictment was insufiicient, as it was quite impossible that the defend-
ant could know, from allegations so vague and indistinct, what was to
be proved against him ; the allegations conveyed no information what-
ever of the particular charges against which the defendant ought to be
prepared to defend himself (/).

Where an indictment for perjury, alleged to have been committed
in the Insolvent Debtors Court, stated that the defendant gave in his
schedule on oath that the same and all its contents were true, and con-
tained a full, true, and perfect account of all his just debts, credits, &c.,
and then went on to state that the said schedule and its contents were
not true, and that certain persons whose names were set out were debtors
to the defendant at the time of giving in his schedule ; Tenterden, C.J.,
held that the evidence must be confined to the cases specified in the
indictment, as the defendant could only come prepared to answer those
cases, and that evidence that other persons, whose names were not set
out in the indictment, were also debtors to the defendant and were
omitted in the schedule, was inadmissible (gr).

An indictment charged the prisoner with the offence of making a

(e) R. V. Whitehouse, 3 Cox, 86, Rolfe, of the K.B. See R. v. London, 12 Cox, 50.
B. (g) R. V. Mudie, 1 M. & Rob. 128. R. v.

(/) R. V. Hepper, Ry. & M. 210, Tenter- Moody, 5 C. & P. 23. The indictment is

den, C. J., after consulting the other judges set out in the note to the latter report.

504 Of Offences against the Administration of Justice, [book.vii.

false declaration before a justice, that he had lost a pawnbroker's ticket,
' whereas in truth and in fact he had not lost the said ticket, but had
sold, lent, or deposited it, as a security to one S. C, &c.' It was held
that the allegation ' but had sold, lent, or deposited it, &c.,' did not
render the indictment ambiguous or uncertain, but was pure surplusage,
which might be rejected, and need not be proved {h).

An indictment for perjury alleged that the defendant made an affidavit,
which stated that the creditors of the defendant were all, with two excep-
tions (which were explained), paid in full ; whereas the said creditors
were not all, with two exceptions only, paid in full ; and whereas divers
creditors of the defendant exceeding the number of two, naming several
creditors, were not paid in full ; and evidence was being tendered of debts
to other persons than those named being unpaid. It was objected that
the first assignment was bad as too general, and that evidence as to debts
due to others than those named ought not to be admitted. Tindal, C.J.,
said : ' You might have demurred to this assignment only, if it be too
general ; and as you have not done so, I do not see how I can exclude the
evidence.' But he added : ' I think that omitting the names in one
assignment of perjury and inserting them in the next is likely to mislead
the defendant ; as he would be very likely to suppose that the debts,
mentioned in general terms in one assignment, were those particularised
in the other ' ; whereon the evidence was not pressed {i).

Contrary Depositions. — An information stated that H. before a com-
mittee of the House of Commons being duly sworn deliberately and know-
ingly and of his own act and consent did say and give in evidence, &c.,
setting out the evidence so given. The count then averred that the said
defendant at the bar of the House of Lords being duly sworn deliberately
and knowingly and of his own act and consent did say, swear, and give in
evidence, &c. : setting out in like manner the latter evidence, which was
directly contrary to that given before the House of Commons ; and
concluded (after averments as to the identity of the persons and places
referred to in the evidence on both occasions), ' and so the jurors aforesaid
do say that the said H. did not commit wUful and corrupt perjury.' The
information was held bad for not shewing and averring in which of the
two depositions the falsehood consisted {j).

Innuendoes. — If there be any doubt on the words of the oath, which can
be made more clear and precise by a reference to some former matter, it
may be supplied by an innuendo ; the proper office of which is to fix and
point the meaning of something previously averred {h), or to explain
the insertion in the indictment of a word omitted in the document, e.gr., in
an affidavit in which the false oath was contained {I). Where an objection

(h) R. V. Parker, L. R. 1 C. C. R. 225. borough, C. J., where the indictment stated

(j) R. V. Parker, C. & M. 639. that the defendant went before a justice of

(j) R. V. Harris, 5 B. & Aid. 926. the peace, and swore in substance to the

(k) R. ?'. Home, 2 Cowp. 672. R. v. effect following, that is to say, &c., and part

Aylett, ] T. R. 70. R. v. Taylor, 1 Camp. of the deposition so set forth was that a

404. See R. v. Griepe, 1. Ld. Raym. 256. person therein named assaulted the depo-

And see as to the use of an innuendo, 1 nent with an umbrella, and, at 'the same

Wms. Saund. 243, note (4). 1 Chit. Plead. time, threatened to shoot her with a pistol ;

406. 1 Stark. Grim. Plead. 118 et seq. but when the deposition was produced it

(/) See R. V. Taylor, 1 Camp. 404, Ellen- appeared that, after stating the assault

CHAP. I.] Of Perjury. 505

was taken to an indictment, that it added, by way of innuendo to the
defendant's oath, ' his house situate in the Haymarket in St. Martin in
the Fields,' without stating by any averment, recital, or introductory
matter, that he had a house in the Haymarket, or (even admitting him to
have such a house) that his oath was of and concerning the said house, so
situated, the objection was overruled, on the ground that the innuendo was
only a more particular description of the same house which had been
previously mentioned (m). In the same case, the oath of the defendant
being that he was arrested upon the steps of his own door, an innuendo
that it was the outer door was held good (n). If the innuendo, and the
matter introduced by it, are altogether impertinent and immaterial,
and can have no effect in enlarging the sense, they may be rejected as
superfluous (o).

An indictment stated the presenting of a petition to the House of Com-
mons concerning the election of B., and setting out the petition, which
stated the said B. before and at the election was guilty of bribery, and that
certain agents of the said B., being trustees of divers public charities,
before and at the said election were guilty of various corrupt acts, &c.,
in order to procure the return of the said B. The indictment then averred
that one C. was a trustee of divers of the said public charities, and ' that
shortly before the said election (to wit), on, &c., the said C, the said B., and
other persons, went to the house of one W. V. for the purpose of soliciting
the said W. V. to vote for the said B. at the said election.' The indict-
ment then stated that certain members of the House of Commons were
chosen to try and determine the merits of the said election, and that the
said persons so chosen met to try and determine the matter of the said
petition. The indictment then averred that S. V. appeared ' as a witness
before the said select committee touching the matter of the said petition,'
and that the said S. V. was duly sworn, &c. ' And it then and there
.became and was a material question, whether at the time aforesaid, when
the said C, the said B., and the said other persons, so went to the house
of the said W. V., the said C. said that he would give the said W. V. £6
out of the funds of one of the aforesaid charities at Christmas^ whereof the
said C. was trustee as aforesaid, or that he would give him £6 at Christ-
ma:s ' (p). And that the said S. V. falsely, &c., did depose, &c., to the
select committee ' touching the matters and merits of the said election
and the matter of the said petition, that hefore the said election a canvassing
party came to her husband's house, and B. and C. came into the house
of the said W. V., and that C. said he would act like a sensible man, and
"I will give him the £6 at Christmas'" {q). 'Whereas in truth and in
fact the said C. did not at the said time when the said B., the said C, and
other persons went to the said house of the said W. V. to solicit him to
vote as aforesaid, or during the time when, on that occasion, they were

with the umbrella, it proceeded thus, ' and introduced and used in the indictment,

at the same threatened to shoot,' &c., could not be rejected as surplusage, and

omitting the word time. vitiated the indictment even after verdict.

(m) R. V. Aylett, 1 T. R. 70. (p) The indictment here stated other

(n) Id. ibid. questions to be material in a similar

(o) Roberts v. Camden, 9 East, 93. 2 manner.

Chit. Cr. L. 311. In R. v. Griepe, uhi sup. (g) The indictment here set out more of

it was held that an innuendo improperly the evidence. See the case, post, p. 511.

506 Of Offences against the Administration of Justice, [book vii.

in or at the said house, say to the said S. V. that the said C. would give
to the said W. V. the £6 at Christmas, or any sum of money from or out
of any of the said public charities, or any sum of money whatsoever
at Christmas or at any other time ' (r). A motion on arrest of judgment
on conviction of perjury was dismissed and the considered judgment of
the Court was : ' Upon this indictment a motion has been made to arrest
the judgment upon two objections : First, that the allegation of the oath
having been taken " touching the matter of the said election, and the
matter of the said petition," did not sufficiently point to the matter
whereupon the defendant was alleged to have given evidence ; and,
secondly, that there was nothing to fix the alleged gift and promise of
money to the said visit on the 6th of July. We think, however, that
neither objection is sustainable. As to the first, it does sufficiently
appear that a competent trial was had, that a material question arose
as to the existence of certain facts, to which the defendant deposed, and
was therein guilty of perjury. Now although it is certainly true that the
averment stating the oath to have been " touching and concerning the
matters and merits of the said election, and the matter of the said petition,"
does not directly refer to what are alleged to be the material questions
which arose, yet, where it does sufficiently appear, both by averment and
otherwise, that the oath was upon a material point, the allegation " touch-
ing and concerning," &c., is wholly superfluous and unnecessary, and the
indictment would have been sufficient if it had omitted that part alto-
gether, and had merely stated that the defendant deposed and swore
'■ as follows," &c. The second objection is, that the evidence, upon which
the perjury is alleged to have been committed, is not referred with suffi-
cient distinctness to the said canvassing visit, and that the innuendo
by which it is attempted so to apply it, introduces new matter, and is
therefore bad. We, however, think otherwise ; for an introductory
averment expressly states that there was, in fact, such canvassing visit,
and the innuendo directly refers thereto. It is plain, therefore, that
this case comes within the rule laid down by De Grey, C.J., in K. ■;;.
Home (s), which has always been recognised as the true one ; and that the
innuendo does only point and fix the meaning of something previously
averred, which is the proper office of an innuendo, and that it does in no
respect enlarge it. We think, therefore, that there is no ground for
arresting the judgment ' {t).

Conclusion. — Since 1851 (u), it has been unnecessary for an indictment
for perjury to have a formal conclusion whether it be perjury at common
law {v), or under statute. In some cases a count is concluded in a

(r) The indictment here set out other under 4 & 5 Will. IV. c. 45, s. 50 (rep.), his

assignments of perjury to the other parts of sittings were a court, and the false swearing

the evidence, which was set out in the in- in it perjury at common law, and need

dictment. not be described as against the form, &c.,

(a) Supra, p. 504. though punishable under s. 52. See 6 & 7

(«) R. V. Virrier, 12 A. & E. 317, per Viet, c, 18, s. 41. In R. v. De Beauvoir,

Denman, O.J. 7 C. & P. 17, the indictment seems not

(m) 14 & 15 Vict. u. 100, s. 24. to have concluded ' against the form,' &o.

{v) In R. V. Thornhill, Salop Summer See the note at the end of the case. In R.

Assizes, 1838 (reported on another point, v. Morgan, 6 Cox, 107, Martin, B., held that

8 C. & P. 575), on an indictment for perjury perjury before a county court judge need

before a revising barrister, it was held that not exclude contra formam statuti.

CHAP. I.] Of Perjury. 507

syllogistic form, being and so the jurors on their oath aforesaid say that
the defendant on &c., at &c., before &c., did commit wilful and corrupt
perjury. Perjury is not a word of art like murder, and such a conclusion
is unnecessary if the false oath was sufficiently alleged in the earlier part of
the indictment, and where it is superfluous mistakes in it are immaterial (w) .

Defects. — If the indictment is defective it may be amended in matters
within 14 & 15 Vict. c. 100, and if bad may be quashed (x) on motion to
quash or demurrer, or judgment may be arrested if the defects have not
been cured by verdict. None of these modes of challenging an indictment
is specifically abolished by the Criminal Appeal Act, 1907 (pos<. Book XII.
Chapter IV.).

Judges at nisi prius have sometimes refused to try indictments for
perjury which were clearly bad on the face of them. An indictment
for perjury charged that one A. B. had been convicted of certain offences,
and that A. B. afterwards obtained a rule to shew cause why a new trial
should not be granted, and that the defendant, in order to prevent the
said rule from being made absolute, made the affidavit whereon the
perjury was assigned, but there was no averment that the matters falsely
sworn were material, nor could it be collected from the indictment that
they were so ; and Garrow, B., having consulted Abbott, C.J., who con-
curred with him in opinion that the indictment was clearly bad, held
that it was the duty of the judge not to proceed to try the case (y). So
where in an indictment for perjury the allegations negativing the matter
sworn, were so vague and indistinct as to convey no information of the
particular charges against the defendant ; Abbott, C.J., after consulting
the other judges of the Court of King's Bench, ordered the case to be
struck out of the list (2). A judge will not allow counsel to argue at length
at nisi prius the invalidity of an indictment, for the purpose of inducing
the Court to refuse to try it, as that is not the time or place to discuss
such disputed questions {a).

These rulings all relate to the very rare cases in which an indictment
for perjury was removed by certiorari and tried at nisi prius, and seem to
depend on the limitations of the nisi prius commission, for in ordinary cases
such indictments would simply be quashed. Under the Judicature Acts
trials at first instance are no longer subject to these limitations.

{w) Ryalls v. R., U A. & E. 781. Vide cution.
R. V. Hodgkiss, L. R. 1 C. C. R. 212 ; 39 {z) R. v. Hepper, Ry. & M. 210. In R.

L. J. M. C. 14, post, p. 529. v. Haynes, Ry. & M. 298, Gaselee, J., re-

(x) Quashing is matter of discretion. R. fused to try at nisi prius an indictment for

V. Lynch [1903], 1 K.B. 444. It is said perjury found at quarter sessions and re-

that the old practice was to require the de- moved by certiorari into the Court of King's

fendant to demur or plead. 2 Hawk. c. 25, Bench, on the ground that the sessions had

s. 146. R. V. Souter, 2 Stark. (N. P.) 423. no jurisdiction over perjury.
R. V. Burnby, 5 Q.B. 348. (o) R. o. Abraham, 1 M. & Rob. 7. In

(t/) R. V. Tremearne, Ry. & M. 147. In this case the defendant's counsel pointed

R. V. Deacon, Ry. & M. 27, Abbott, C.J., out the objections in order to induce the

refused to try an indictment for a forcible Court to stop the trial, and Tenterden, C.J.,

entry, which was bad for want of alleging said that ' it might be convenient some-

that the entry was manuforti, although the times for counsel to suggest a point on

counsel for the defendant insisted that the which an indictment is clearly bad, to save

case should proceed in order that the de- the time of the Court.' In R. v. Hepper

fendants might have the benefit of an {ante, p. 503), and R. v. Tremearne {ubi

acquittal by a jury, as they intended to sMpro) the objections to the indictment were

institute proceedings for a malicious prose- pointed out by the Court.

508 Of Offences against the Administration of Justice, [book vii.

Evidence.

Corroboration. — Where the defendant on arraignment pleads guilty
to the perjury charged, or where he has made a confession or admis-
sion (6), that his previous statement on oath was false (c), corroboration
is not necessary to warrant his conviction and sentence. But in all
other cases the evidence of one witness is not sufficient to convict the
defendant on an indictment for perjury. This rule is founded upon the
general apprehension that it would be unsafe to convict in a case where
there is merely the oath of one man to be weighed against the oath of
another {d). The rule does not extend to all the facts, which are neces-
sary to be proved on the trial of an indictment for perjury ; but only to the
proof of the falsity of the matter upon which the perjury is assigned.
Thus, the holding of the court, the proceedings in it, the administering
the oath, and even the evidence given by the defendant, may all be proved
by one witness (e).

Nor is the rule to be understood as establishing that two witnesses
are necessary to disprove the fact sworn to by the defendant ; for if any
material circumstance is proved by other witnesses, in confirmation of the
witness who gives the direct testimony of perjury, it may turn the scale
and warrant a conviction (/).

In R. V. Roberts {g) the prisoner was indicted for having falsely sworn
that P. never was out of his sight between the hours of 7 a.m. and 10 a.m.
on a certain day, and two witnesses proved that they saw P. at 8.30 a.m.
on that day near L., but could not tell whether the prisoner was in sight of
P. or not, as the fences were high. Another witness proved that at 9 a.m.
the same morning he saw the prisoner alone and on foot at a place more
than six miles from L. It was objected that the assignment of perjury
was not proved by two witnesses. Patteson, J., said: 'It is necessary
to have two witnesses to prove an assignment of perjury ; but there need
not be two witnesses to prove every fact necessary to make out an assign-
ment of perjury. If the false swearing be that two persons were together
at a certain time, and the assignment of perjury that they were not to-
gether at that time, evidence by one witness that at the time named the
one was at London, and by another witness that the other was at York,
would be a sufficient proof of the assignment of perjury.'

The rule applies to every assignment of perjury in the indictment.
■Where, therefore, an indictment contains several assignments of perjury,
it is not sufficient to disprove each of them by one witness ; but in order
to convict on any one assignment, there must be either two witnesses,
or one witness and corroborative evidence, to negative the truth of the
matter contained in such assignment. In R. v. Parker Qt) the prisoner
was indicted for perjury alleged to have been committed in an affidavit
to obtain a criminal information, in which he had sworn that he had paid

(5) As to admissions, see post, Bk. xiii. (e) 2 Hawk. o. 46, s. 10.

c. iv. ' Evidence.' {/) R. v. Shaw, L. & C. 579 : 34 L. J.

(d) R.?).Mu8cot, 10 Mod. 193. 4B1. Com. Bayley, J. 1 Phill. Evid. 152 (7th ed.).
358. Taylor on Evidence (10th ed.), s. 959. (g) 2 C. & K. 607.

And see 1 PhiU. Ev. (7th ed.) 151 ; Stark. (h) [1842] C. & M. 639, and MSS. C. S. G.

Ev. 859; Best, Ev. (10th ed,), ss. 603-7.

CHAP. I.] Of Perjury. 509

all his debts, except two, as to which there was an explanation, and there
were several assignments of perjury averring that he had not paid certain
persons who were named (besides the two excepted ones), and such
persons proved that they had not been paid, but only spoke to their
respective debts not having been paid ; Tindal, C.J., held that this was
not sufficient, and that as to each debt there should be the testimony
of two witnesses, or of one witness, and such confirmatory evidence as
was equivalent to the testimony of a second witness {i).

In R. V. Hare (/), where an assignment of perjury was in the vague
terms that defendant falsely swore that he had not treated a certain
person to brandy, &c., on a certain day, instead of in the definite terms,
that he had not treated him at a particular public-house, on a certain
day, it was held, that proof of treating at two public-houses by two
distinct witnesses was sufiicient to support a conviction, because any
witness of a treating at a separate time and place on the same day was
sufficient corroboration of a witness who spoke only to one act of treating.

In R. V. Champney {h), Coleridge, J., is reported to have said : ' One
witness in perjury is not sufficient, unless supported by circumstantial
evidence of the strongest kind ; indeed, Lord Tenterden, C.J., was of
opinion that two witnesses were necessary to a conviction.' In a later
case, R. v. Yates (Z), where the evidence of one witness went in support
of all the assignments of perjury, and to confirm him another witness was
examined as to a conversation between himself and the defendant, and
some entries in the defendant's books were given in evidence ; it was
submitted that there was no evidence to go to the jury ; that the rule
is that a case of perjury cannot be submitted to the jury on the evidence
of a single witness ; and as to the evidence of confirmation, it was not
enough that there should be some evidence in .confirmation, as in an
ordinary case at nisi prius, where some evidence is necessary to prevent
a nonsuit ; but it must be such evidence as, in the opinion of the judge,
is really confirmatory in some important respect, and equivalent to the
positive testimony of a second witness. Coleridge, J., said : ' I think that
the case must go to the jury, but I also think without the slightest chance

(i) In R. V. Mudie, 1 M. & Rob. 128, Tenterden, C.J., said: 'I feel the force of

Tenterden, C. J., had expressed a doubt the objection. It is a very important point

on this point. The indictment was for whether the defendant's book, and the oath

perjury, alleged to have been committed by on one side, be not met by the oath of the

an insolvent debtor in falsely swearing to witnesses on the other side. It would be

the correctness of his schedule, the defend- very difficult to give any other evidence,

ant's account book, given by him to the I will not stop the case. If the defendant

Insolvent Debtors Court, was put in, and is convicted, you can move for a new trial.'

several persons, whose names were specified The defendant was acquitted on other

in the indictment as debtors, and omitted grounds.

in the schedule, appeared in the book as (j) 13 Cox, 171, Denman, J.

debtors to the defendant, and ' paid ' was {h) 2 Lew. 258. The same point is said

marked to their accounts in the defend- to have been ruled by the same learned

ant's writing. These persons were called, judge in R. v. Wigley, ibid. note. Mr.

and stated that they did not pay until after Starkie observes, ' And semble that the

the petition and schedule. It was objected contradiction must be given by two direct

that this was not sufficient evidence, inas- witnesses, and that the negative supported

much as it was only oath against oath, the by one witness and by circumstantial evi-

defendant having sworn that the debts dence, would not be sufficient. It has been

were paid ; a single witness, with respect to so held (ut audivi) by Tenterden, C.J.' 3

each particular debt, swore that it was not Stark. Evid. 860, note [g).

paid at the particular time of the schedule. [l] C. & M. 132.

510 Of Offences against the Administration of Justice. [BOoK Vlt.

of a verdict for the Crown. The rule that the testimony of a single witness
is not sufficient to sustain an indictment for perjury, is not a mere
technical rule, but a rule founded on substantial justice ; and evidence
confirmatory of that one witness in some slight particulars only, is not
sufficient to warrant a conviction.'

In R. V. Towey (m), an indictment for perjury comniitted on the trial of a
' civil bill ' in Ireland, alleged that the prisoner, T. T., falsely swore that
' the note produced is not my handwriting, or any part of it, and the name
" T. T." as a witness is not in my handwriting.' The note purported to bear
the marks of P. and J. T. as makers of the note, and had on it, ' Witness
present, T. T.' The payee of the note could not read, but he identified
the note, and swore that he saw T. T. write on the paper, and saw P. and
J. T. put their marks on it. Another witness proved that he had sub-
poenaed T. T. to appear at the sessions as a witness, and that the prisoner
then said that there was no occasion to test (subpoena) him ; that he would
go to prove the note ; and that at a meeting between the parties to try
to settle the civil bill, on the payee of the note saying he had J. T.'s note,
and would take the law on it unless he signed a new one, T. T. said that
he had been tested (subpoenaed) to come there, but that there was no
occasion to test him ; that he would prove the note. But the note was
not produced at this meeting. It was held that this evidence was a
sufficient corroboration of the evidence of the payee. The prisoner
was the only witness to the note, and he could only prove it in his character
as a witness, and, therefore, when he said he could prove it, it came to
sufficient evidence that he was the witness to the note.

In R. V. Boulter {n) the indictment alleged that in June, 1851, the
prosecutor had distrained upon the prisoner's goods for certain arrears
of rent, and that the prisoner on trial at nisi prius falsely swore that
there was only one quarter's rent due at the time of the said distress.
On the trial for perjury the prosecutor positively swore to the fact of
there being five quarters' rent due at the time of the said distress ; and
produced his books by which he refreshed his memory ; and for the
purpose of corroborating his statement, the son of the prosecutor deposed
to a conversation with the prisoner in August, 1850, in which the prisoner
admitted that three or four quarters of the said rent were then due. The
jury convicted ; but, upon a case reserved, the judges were unanimously
of opinion that this was not sufficient corroboration. There was nothing
in the evidence of the son relevant to the issue. There was a year's
interval between the transaction he spoke of and the time when the
distress was made, and the money might have been paid intermediately.
The oath of the son was quite as consistent with the oath of the prisoner
as with that of the prosecutor. In perjury there must be something
to make the one believed rather than the other, and there was no such
evidence in this case (o).

(m) 8 Cox, 328 (C. C. R. Ir.). ence and probative force of its own, inde-

(re) 2 Den. 396 ; 21 L. J. M. C. 57 ; 3 C. pendent of the other ; so that, supposing

& K. 236. the charge to be one in which the law

(o) In Best, Ev. (10th ed.), a. 609, it is allows condemnation on the oath of a

said to be a question whether ' the old rule single witness, the evidence of either would

and reason of the matter are satisfied unless form a case proper to be left to a jury, or

the evidence of each witness has an exist- would at least raise a strong suspicion of

CHAP, i.i Of Perjury. 511

In R. V. Virrier (p), where there were three assignments of perjury upon
evidence relating to one and the same transaction, at one and the same
time and place, it seems to have been considered that the jury ought not
to convict on one of the assignments, although there were several witnesses
who corroborated the witness who spoke to such assignment on the
fact contained in the other assignments. The assignment was that
she falsely swore that B. shook hands with her, and put something
into her hand, and told her to give it to her husband, and that it was
a sovereign wrapped up in some paper. Evidence was given in support
of all the assignments of perjury. Denman, C. J., in summing up, said that
as to the second assignment the proof lay almost entirely in the evidence
of one witness, and, therefore, he did not see how the jury could convict
of the perjury imputed ; but that on the others there was a distinct
contradiction of the defendant's testimony by C. and several other
witnesses ; and he left it to the jury to say whether there were not a strong
body of evidence clearly supporting C.'s denial {q).

In R. V. Gardiner (r) upon an indictment for perjury, alleged to have
been committed in making a charge of an unnatural offence, in which
the defendant had deposed that he saw the prosecutor committing the
offence, and saw the flap of his trousers unbuttoned, and that he was
there five minutes ; the prosecutor swore that he did not commit the
offence, and that his trousers had no flap ; and to confirm him his brother
proved that at the time in question the prosecutor was only absent three
minutes, and that the trousers he had on, which were produced in court,
had no flap. Patteson, J., held that the corroborative evidence was quite
sufficient to go to the jury ; and upon a case reserved, the judges held the
conviction right (r). So where perjury was alleged to have been committed
by the defendant, who was an attorney, in an affidavit made by him to
oppose a motion to refer the defendant's bill of cost to taxation, and
to prove the perjury one witness was called, and in lieu of a second
witness, it was proposed to put in the defendant's bill of cost delivered
by him to the prosecutor ; it was suggested that this was not sufficient,
as the bill had not been delivered by the defendant on oath. Denman,
C.J. : ' I have quite made up my mind that the bill delivered by the
defendant is sufficient evidence, or that even a letter, written by the
defendant, contradicting his statement on oath, would be sufficient to
make it unnecessary to have a second witness ' (s).

Where a prisoner was indicted for falsely swearing that he had paid
B. a certain sum of money on a particular occasion, and B. swore that

the guilt of the defendant.' See R. v. Shaw, ming up, but did so afterwards ; and having
34 L. J. M. C. 169 : L. & C. 579. a distinct remembrance of it, and no doubt
(p) 12 A. & E. 317. of the jury's intention, he (on the summons)
(q) Denman, C. J., considered the most allowed the postea to be amended by enter-
convenient mode of summing up the case to ing a verdict of ' guilty ' on the first and
be to treat the second assignment as the third assignments, and ' not guilty ' on the
first, and the first and third as one, and did second"; but the Court afterwards held that
'so leave the case to the jury, who found a the amendment ought not to have been
verdict of ' not guilty on the first assign- made, there being no note or memorandum
ment of perjury for want of sufficient evi- of the judge or other document to amenrf
dence, and guilty on the second,' but said by.

nothing on the third, and the verdict was (r) 2 Mood. 95 ; 8 C. cfc P. 737.

entered accordingly. The Chief Justice did [s) R. v. Mayhew, 6 C. & P. 315, and see

not at the time make any note of his sum- Best, Ev. (10th ed.), p. 511.

512 Of Offences against the Administration of Justice, [book vll.

he received the money in packages, and afterwards counted it, and found
it £7 short ; this statement was held not to be corroborated at all by
evidence of another person, who also counted it, but had not been present
when the money was received (<).

An indictment alleged that the prisoner falsely swore at a petty ses-
sions that E. was the father of her illegitimate child. A witness other
than E. proved that the prisoner had said that E. ' had never touched
her clothes ' at a time when she generally denied being in the family way.
It was ruled that though, under some circumstances, such a statement
might have been a sufficient corroboration of the evidence of E., yet
this negation was so far a part of the general denial that the jury could
not safely convict upon it alone (m).

In E. V. Hook {v), Wightman, J., said : ' It is not necessary that there
should be two independent witnesses to contradict the particular fact,
if there be two pieces of evidence in direct contradiction. Here one piece
of evidence is that the prisoner himself is proved to have made statements
directly contrary to his statement on oath ; that alone would not do ;
but in addition to that you have the oaths of other witnesses, which go
to shew that that which he stated when not upon oath was true ; and there-
fore you have two pieces of evidence. I ought rather to put it that,
instead of two witnesses being necessary to prove each fact, you must
have the evidence of two persons giving evidence in contradiction to what
has been sworn to by the prisoner ; as, one witness who could prove, as in
this case, that on other occasions the prisoner had stated that which was
diametrically opposed to that which he has sworn, and the other witness
to give evidence of that which is directly opposite. You have therefore
two contradictions : you have the contradiction of the prisoner himself,
as deposed to on oath by one witness, and you have the contradiction
of another independent witness, who speaks to the falsehood of the fact :
you, therefore, have two independent contradictions on oath.'

Contradictions by Defendant. — In E. v. Knill {w), where the defendant
had been convicted of perjury, charged to have been committed in an

(t) R. V. Braithwaite, 1 F. & F. 638 ; 8 those sworn to by the prisoner. Cockburn,

Cox, 444, Watson, B., and Hill, J. In C. J., is said to have held the private memo-

the latter report it is stated that ' the randum to be a sufficient corroboration,

prosecutor took it without counting it, and If this case is correctly reported, it deserves

carried it to a Mrs. Watson's, and counted reconsideration. The memorandum was

it over.' In the former, ' The prosecutor not itself admissible, and could only be

took it without counting it, and carried it used to refresh the memory of the witness ;

to an adjacent lane, where he counted a, so that the whole statement rested on his

part of it, and found it wrong ; he then single oath ; and, even if the memorandum

gave it to a Mrs. Watson, and asked her to had been admissible, it would only have

count it over.' Mrs. Watson was the wit- been the written statement of the witness

ness called to corroborate B. and not on oath ; and the time when it was

(u) R. V. Owen, 6 Cox, 105, Martin, B. made and the veracity of its statements
In R. V. Webster (1 F. & F. 515 ; 8 Cox, must have rested on his single oath. See
187) a count alleged that the prisoner R. v. Lara, 6 T. R. 565, in support of this
falsely swore that she had shewn to one C. reasoning. In R. v. Boulter, supra, p. 510,
certain invoices bearing certain dates. C. it was not even suggested that the prose-
swore that the prisoner had not shewn him cutor's books could be used to corroborate
the invoices she had sworn to, but that she his evidence.

had shewn others; and he produced a (w) D. & B. 606 (C. C. R.). For the facts

memorandum, he had made privately at of this case, see post, p. 515.

the time, of the dates of the invoices, which (w) 5 B. &. Aid. 929, note (a).
shewed that they were not the same as

CHAP. I.] Of Perjury. 513

examination before the House of Lords, the only evidence was a contra-
dictory examination of the defendant before a committee of the House
of Commons. Application was made for a new trial, on the ground that
in perjury two witnesses were necessary, whereas in that case only one
witness had been adduced to prove the corpus delicti, namely, the witness
who deposed to the contradictory evidence given by the defendant before
the committee of the House of Commons ; and it was insisted that mere
proof of a contradictory statement by the defendant on another occasion
was not sufficient, without other circumstances shewing a corrupt motive,
and negativing the probability of any mistake. But the Court held that
the evidence was sufficient, the contradiction being by the party himself,
and that the jury might infer the motive from the circumstances (ww).
In an anonymous case (x) a man swore before a justice of the peace,
that three women were concerned in a riot at his mill (which was dis-
mantled by a mob on account of the price of corn). Afterwards, at the
session, when the rioters were indicted (having been tampered with in
their favour) he then swore they were not in the riot. Perjury was
assigned on the oath that the women were in the riot ; there was no evidence
to prove that they were, but the defendant's own original information on
oath, which was produced and read. The judge thought this evidence
sufficient, and the defendant was convicted («/).

These two decisions, if correctly reported, appear to be contrary to
first principles and to be virtually overruled by the series of cases next
to be stated.

In R. V. Wheatland (z), on an indictment for perjury, alleged to have
been committed on the trial of an indictment for larceny, it appeared
that the defendant had sworn to several material facts before the com-
mitting magistrate, but when he was called on the trial, denied the whole
of what he had stated before the magistrate. R. v. Knill and Anon, (a)
were cited to shew that the contradiction by the oath before the magis-
trate would alone be sufficient evidence to convict the defendant ; but
Gurney, B., held, that it was not sufficient to prove that the defendant
had, on two different occasions, given directly contradictory evidence,
although he might have wilfully done so ; but that the jury must Ibe
satisfied affirmatively that what he swore at the trial was false, and that
would not be sufficiently shewn to be false by the mere fact that the
defendant had sworn the contrary at another time ; it might be that his
evidence at the trial was true, and his deposition before the magistrate
false. There must, he held, be such confirmatory evidence of the defendant's

(ww) 5 B. & Aid. 929, note (o). seems sufficient to disprove the other ; and

(x) Oor. Yates, J., Lancaster Sum. Ass. with respect to the defendant (who cannot

1764. And afterwards. Lord Mansfield, contradict what he himself has sworn) is a

C.J., and Wilmot, J., and Aston, J., to clear and decisive proof, and will warrant

whom Yates, J., stated the reasons of his the jury in convicting him on either, for

judgment, concurred in his opinion. Notes whichsoever is given in evidence to dis-

to R. V. Harris, 5 B. & Aid. 939, MS. Bayley, prove the other, it can hardly be in the

J. defendant's mouth to deny the truth of that

iy) The Precedent-book of Chambr", J., evidence, as it came from himself,

cited 5 B. & Aid. ibid., suggests that when (z) 8 0. & P. 238.

the same person has by opposite oaths as- (a) Supra.
serted and denied the same fact, the one

VOL. I. 2 L

514 Of Offences against the Administration of Justice, [book vii.

deposition before the magistrate, as proved that the evidence given by the
defendant at the trial was false (6).

And in E. v. Hughes (c), where a prisoner was indicted for perjury
in evidence given before a grand jury, and her deposition on the hearing
of the charge before the committing magistrate was put in to shew that
the statement before the grand jury was false ; Tindal, C.J., held, that
further evidence must be given ; for if the two contradictory statements on
oath alone were proved, non constat which was the true one {d).

In E. -y. Jackson (e), where the prisoner was indicted for perjury, and
it appeared that she had made two statements on oath, one of which was
directly at variance with the other ; Holroyd, J., is reported to have said :
' Although you may believe that on one or other occasion she swore that
which was not true, it is not a necessary consequence that she com-
mitted perjury ; for there are cases in which a person might very honestly
and conscientiously swear to a particular fact, from the best of his
recollection and belief, and from other circumstances at a subsequent
time be convinced that he was wrong, and swear to the reverse, without
meaning to swear falsely either time. Again, if a person swears one

' (6) In R. V. Knill, the Court held that
' the jury might infer the motive from the
circumstances,' none of which are stated in
the short minute of the case ; some of them
might have been such as to shew that the
one statement was false, or the other state-
ment true. In the Anonymous case the de-
fendant had been tampered with after Ms
first examination, and the evidence of the
tampering with the defendant might be
such as to lead to the conclusion that his
evidence on the trial was false. But sup-
posing those cases go the length of estab-
lishing the proposition, that the defendant's
own evidence upon oath is sufficient to con-
tradict the evidence on which the perjury
is assigned, it is conceived they cannot be
supported. The prosecutor may charge
the perjury either on the one statement or
on the other, and whichever he selects it is
clear that the defendant could not avail
himself of a plea of autrefois acquit, or con-
vict in case he were subsequently indicted
for the other, and therefore he might be
twice put in jeopardy, and perhaps twice
convicted for the same offence. The judg-
ment in R. V. Harris, 5 B. & Aid. 926, is
conclusive to shew that this is a good ob-
jection. Again, such evidence leaves it
wholly uncertain which of the two state-
ments is true ; now it is a clear rule of
criminal law that if the evidence on the part
of the prosecution leaves it wholly uncer-
tain whether the crime charged has been
committed or not, the defendant must be
acquitted ; and as to the observation that
' it can hardly be in the defendant's mouth
to deny the truth of the evidence that came
from himself,' it must be remembered that
there are two statements upon oath, and if
he is to be concluded from denying one to
be true, the same reason would conclude

him from denying the other, and it would
surely be unreasonable to hold that he is
concluded to deny the truth of whichever
the prosecutor may think fit to select. It
is conceived, also, that an indictment
charging each of the statements to be false
in separate counts could not succeed. The
charges being directly contradictory the
one to the other, it may be doubted whether
the grand jury would be warranted in find-
ing such an indictment ; or, if found,
whether it would not be bad on the face
of it ; and as the defendant could only
make a defence to one charge by proving
himself guilty of the other, the judge would
probably insist upon the prosecutor electing
on which charge he would proceed. But
supposing these difficulties to be sur-
mounted, it is not easy to see how it would
be possible for the jury to find a verdict
without any evidence to shew which state-
ment was false. If they found a general
verdict they would at one and the same
time find each of the statements to be both
true and false, unless indeed they were, satis-
fied that the defendant had, upon both
occasions, wilfully sworn to matters about
which he had no knowledge at all. Ante,
pp. 476, 502. C. S. G.
(c) 1 C. & K. 519.

{d) The false statement before the grand
jury was that certain tablecloths were the
property of the prisoner's son, and she had
sworn before the magistrates that they
were her husband's ; and evidence of the
state of the family was given to prove that
the latter statement must be true ; but
Tindal, C.J., thought that there was so
much doubt whether the prisoner might not
have sworn under a misapprehension, that
he directed an acquittal,
(e) 1 Lew. 270.

CHAP. 1.] Of Perjury. 515

thing at one time, and another at another, you cannot convict where
it is not possible to tell which was the true and which was the false.

And in E. v. Hook (/), the prisoner, a policeman, laid an information
against a publican for keeping open his house after lawful hours on the
fast day, and on the hearing of the information swore that he knew nothing
of the matter, except what he had been told by another person, and that
' he did not see any person leave the pMican's house after eleven ' on the night
in question. Perjury was assigned on this last allegation. It was proved
by the clerk of the magistrates that the prisoner on laying the information
said, he had caught the publican ; he had last night seen four men leave his
house after eleven ; one of them he could swear to ; it was W. ; he knew
him by his coat. Another witness proved that the prisoner, on another
occasion, made the same statement to him. A third witness, W., proved
that, on a third occasion, the prisoner repeated the statement with the
variation, ' One I can swear to ; it was your brother.' It was proved that
W. and others had left the house on that night after eleven. The prisoner
on the hearing of the information acknowledged that he had offered to
smash the case for 30s. He told another witness he should make the
publican give him money to settle it ; another witness heard him offer the
publican to settle it for £1, saying he was risking perjury ; and another
witness proved that the prisoner owned he had received 10s. to smash
the case, and was to have 10s. more. It was objected that there was
no sufficient evidence, as these were only the statements of the prisoner
not on oath against that on oath. But, on a case reserved, it was held
that the conviction was right. In addition to the statements of the
prisoner, there were strong confirmatory circumstances. The prisoner's
offering to smash the case for one pound, his admitting that he had
received 10s. and was to receive 10s. more, and his talking of making the
publican pay to settle it, are strong evidence to shew that what he stated
upon his oath was false, and that his statements not upon oath were
true (/).

In this case Pollock, C.B., expressed a doubt whether a conviction
could thereafter be permitted in such a case as E. u. Knill (g).

Proof of Former Trial. — ^Where the former trial was of a civil action in
any branch of the High Court of Justice (h), the record is proved (i)
by the production of the original by an officer of the Court, under order
of a judge or master (E. S. C. Ord. LXI., rules 28, 29), or of an office
copy(/).

Thus upon an indictment for perjury charged as having been com-
mitted on the trial of an action in the High Court of Justice, the

if) D. &B. 606 (C. C. R.). The question not now any judgment roll. Under the

involved was not the fact that the men left old practice, final judgment was entered

the house, but whether the prisoner had before any roll was carried in, and an entry

truly stated that he saw them leave. in a judgment book, stating that interlocu-

ig) In R. V. Cleland [1901], 20 N. Z. L. R. tory judgment had been signed in an action,

509, the Court seem to have considered that and final judgment afterwards entered,

R. V. Hook actually overrules R. v. KniU, was held enough to prove the entry of such

ante, p. 512. judgment without producing the judgment

{h) Including actions tried at the assizes. roll or an examined copy. R. v. Gordon,

(i) As to former rule, see R. v. lies, C. & M. 410, Denman, C.J. See Fisher v.

Hardr. 118. Bull (N. P.) 243. 2 Hawk. Dudding, 9 Dowl. Pr. Cas. 872.
c. 46, s. 57. 3 Stark. Ev. 833. There is (j) Vide post, Bk. xiii. u. iii. ' Evidence.'

2 l2

516 Of Offences against the Administration of Justice, [book vii.

production by the officer of the Court of the copy writ filed under Ord.
v., rule 7, and the copy pleadings filed under Ord. XLI., rule 1, and by
the solicitor for the defendant in the action of the order to discuss the
action were held sufficient evidence of the existence of the action {k).

A minute written by the officer of the Court on the jury panel, verdict
for damages Is., was held sufficient evidence of a trial at nisi prius, though
the nisi prius record on production had no postea endorsed (I).

Where the perjury is assigned on a former trial for felony or mis-
demeanor, the former trial may be proved by certificate of the officer
having custody of the records of the court where the former trial took
place (m).

Where the former trial was before a jury it is not necessary to prove
that their verdict was given on all the issues sent down for trial (n),
nor even that they gave any verdict, if they have in fact been sworn
and have tried the case (o). Whatever the form of trial, the material
thing to prove is that there was a trial. Its result is immaterial to the
issue of perjury, and the judgment or conviction (p) is not admissible as
evidence that the perjury assigned was committed. Nor are statements
made by the judge in giving judgment on the former trial admissible
against a witness or a prosecution for perjury in his evidence given at that
trial (r).

On an indictment against T. R. for suborning one M. to commit
perjury, it was contended on the part of the Crown that the bare pro-
duction of the record of M.'s conviction was of itself sufficient evidence
that he had, in fact, taken the false oath as alleged in the indictment.
But it was insisted, for the prisoner, that the record was not of itself
sufficient evidence of the fact ; that the jury had a right to be satisfied
that such conviction was right ;. that R. had a right to controvert the
guilt of M. ; and that the evidence given on M.'s trial ought to be submitted
to the consideration of the present jury ; and the Recorder obliged
counsel for the Crown to go through the whole case in the same manner as
if the jury had been charged to try M. (s).

Central Criminal Court. — On a trial for perjury at the Central Criminal
Court the caption of the same Court of oyer and terminer or gaol delivery
at which the indictment for perjury is preferred, the former indictment

(k) R. V. Scott, 2 Q.B.D. 415. (o) R. v. Bray, 9 Cox, 218. The Re-

(l) R. V. Brown, M. & M. 315 ; 3 C. & P. oorder, after consulting Bramwell, B., and

572, Tenterden, C.J., after consulting the Byles, J.

other judges of the Court of King's Bench. (p) R. v. Goodfellow, C. & M. 569 (con-

(m) 14 & 15 Vict. u. 100, o. 22, ante, viction before justices). See R. v. Dowlin,

p. 482. 5 T. R. 311. In R. v. Moreau, 11 Q.B.

(re) R. V. Schlesinger, 10 Q.B. 670. The 1028 (award of an arbitrator), Denman,
indictment alleged the trial of two issues C.J., said : ' The decision of the arbitra-
before the sheriils of London on writ of tor in respect of the fact is no more than
execution, and the position shewed a verdict a declaration of his opinion, and there is
on one issue only. The jury had been no instance of such a declaration of opinion
summoned and sworn to try both, as ap- being received as evidence of a fact against
proved by the record. The record stated -■ party to be aifected by proof of it in any
that the jury, after evidence given, with- criminal case.'
drew to consider their verdict, and after (r) R. v. Britton, 17 Cox, 627.
they had agreed, returned to the bar to (s) R. v. Reilly, 1 Leach, 454. The re-
deliver their verdict, ' Whereupon the cord was not res judicata in the proceedings
plaintiff being called, comes not, &c.' against R.

CHAP. I.] Of Perjury. 517

with the indorsement of the prisoner's plea, the verdict, and sentence of
the Court thereon, together with the minutes of the trial, made by
the officer of the Court, are at common law sufficient evidence of the former
trial, without a regular record or any certificate thereof {t).

Quarter Sessions. — The sessions book containing the orders and other
proceedings of a Court of Quarter Sessions made up and recorded after
each sessions, with an entry containing the style and the date of the
sessions, and the name of the justices in the usual form of a caption, no
other record being kept, is good evidence of the trial of an appeal against
an order of removal {u).

County Court. — Where an indictment is preferred for perjury com-
mitted on the hearing of a plaint in the County Court, the proper mode
of proving the proceedings in that Court is to produce the Court book
containing a note of the plaint or a copy of the minutes bearing the seal
of the Court, and purporting to be signed and certified as a true copy by
the registrar of the Court under s. 28 of the County Court Act, 1888
(51 & 52 Vict. c. 43) {v).

Ecclesiastical Court. — An indictment for perjury alleged that a certain
suit was instituted in the Prerogative Court of Canterbury, in which
M. S. M. was plaintiff, and J. T., J. H. T., W. B. W., and W. T. A.,
defendants; and in order to prove this allegation, an officer from the regis-
trar's office in the Prerogative Court produced from the office an original
allegation put in on behalf of M. S. M. and the original allegation put in
on behalf of the executors in answer to it, and proved the signatures of
two advocates, who acted as advocates in the Court, to each of the allega-
tions. This was held sufficient proof of the suit having been instituted
as alleged (w).

Proof of Authority to administer the Oath. — It is sufficient, to sup-
port the averment that the party administering the oath had com-
petent authority for that purpose, to shew in the first instance that he
acted as a person having such authority. Thus, upon an indictment
for perjury before a surrogate in the Ecclesiastical Court, it was ruled,
that the fact of the person who administered the oath having acted
as a surrogate was sufficient prima facie evidence of his having been
duly appointed, and having authority to administer it. And Ellen-
borough, C.J., said : ' I think the fact of Dr. P. having acted as surrogate
is sufficient prima facie evidence that he was duly appointed and had
competent authority to administer the oath. I cannot for this purpose
make any distinction between the Ecclesiastical Courts and other juris-
dictions. It is a general presumption of law, that a person acting in a

(t) R. V. Newman, 2 Den. 390. The a record of the trial o£ such an appeal,
trial for perjury was in December 1851 ; (v) This enactment takes the place of

the trial on which the perjury was com- 9 & 10 Vict. c. 95, s. 111. See R. v. Row-

mitted was at a session held on May 12, land, 1 F. & F. 72. Bramwell, B., held

1851, and the caption was dated on that that the proceedings on hearing the plaint

day. As to other modes of proof, see 14 & could not be proved by the assistant clerk

15 Vict. i;. 100, ». 22, ante, p. 482. of the Court. In R. v. Ward, 3 Cox, 279,

(u) E. V. Yeoveley, 8 A. & E. 806. In Maule, J., held that want of proof of a

R. V. Ward, 6 C. & P. 366, Park, J., had county court summons was answered by

rejected the 'sessions book on the strength the fact of the prisoner's appearance, which

of a statement by the clerk of the peace might be proved by parol,
that he would, on request, have drawn up (w) R. v. Turner, 5 C. & K. 732, Erie, J.

518 Of Offences against the Administration of Justice, [book vxi.

public capacity is duly authorised so to do' {x). But upon its appearing
that the surrogate was appointed contrary to the canon (which requires
that no judicial act shall be speeded by any ecclesiastical judge, unless in
the presence of the registrar or his deputy, or other persons by law allowed
in that behalf), it was held that his appointment was a nullity and the
averment that he had authority to administer the oath was negatived {y).
Where perjury was assigned upon an affidavit sworn before C, a com-
missioner, &c., and it was proved that C. acted as a special commissioner
for taking the affidavits of parties in prison, or unable from sickness to
attend before a judge ; Patteson, J., held that this was sufficient evidence
that C. was a commissioner, and that it was not necessary to prove
the commission under which the affidavit was taken, upon the general
principle that a person acting as a public officer must be taken to have
authority as such, and that a commissioner for taking affidavits came
within that principle {z). An affidavit was alleged to have been sworn
before R. G. W., a commissioner, ' then and there being duly authorised
and empowered to take affidavits in the said county of G. in or concerning
any cause depending in Her Majesty's Court of Exchequer.' It was
proved that W. had acted as a commissioner for taking affidavits in the
Court of Exchequer for ten years ; that he had never seen his commission,
but had directed it to be applied for ten years before through his agent,
and had been told by him that it had been granted. It was held that W.'s
acting as a commissioner was frima facie evidence that he was so {a).

On an indictment for perjury in a County Court, Maule, J., held
that proof that the judge acted in the capacity of a judge of the Court in
pursuance of and under the County Courts Act, 1846 (repealed), was
sufficient (b).

The same rule applies to deputy judges of County Courts (c).

Where a question arises whether by the practice of a Court an affidavit
is prescribed or required, the rules of practice should be proved by an
official copy [d) or by an officer who can verify the practice (e).

Where the jury is assigned on an oath before a Court or person with
limited jurisdiction it is necessary to prove such facts as would give
jurisdiction to administer the oath (/). This rule was applied" in several
cases under the old bankruptcy law where the jurisdiction of commissioners
of bankruptcy to examine a bankrupt depended on the existence of a good
petitioning creditor's debt {g) or the fact of bankruptcy {h).

Where the issue and (or) service of a summons or the laying of an

{x) R. V. Verelst, 3 Camp. 432. R. v. (c) R. v. Roberts, 14 Cox, 101.

Cresswell, 2 Chit. Cr. L. 312. (d) Vide jiost, Bk. xiii. o. iii.

(y) R. V. Verelst, supra. (e) See R. v. Koops, G A. & E. 198. In

(z) R. (/. Howard, 1 M. & Rob. 187. that case printed rules were not admitted

(a) R. V. Newton, 1 C. & K. 469, Atcher- in the absence of evidence that they were

ley, Serjt., after consulting Tindal, C.J. sanctioned by the Court, or known to

The defendant had requested Whatley to express its practice.

act as commissioner in taking this particu- (/) See R. v. Dunning, L. R. 1 C C. R.

lar affidavit. 290, ante, y. 486.

(fc) R. 0. Ward, 3 Cox, 279. An attempt (?) R. v. Ewington, 2 Mood. 223 ; C. &

had been made to prove the due constitu- M. 319.

tion of the Court by production of a copy (h) R. v. Punshon [1812], 3 Camp. 96.

of the ' London Gazette,' which turned out Vide R. v. Bullock, 1 Taunt. 71.

t(i be the wrong one.

6hap. I.] Of Perjury. 519

information is necessary to give the justices jurisdiction to take the
evidence on which the perjury is assigned, it is necessary to prove the issue
service, &c. {i), or that its absence or defects were waived {j). Proof of
such matters may also be necessary in order to ascertain the nature of the
proceeding before the justices from the point of view of the materiality
of the false evidence {k).

An indictment alleged that the prisoner appeared at petty sessions
in pursuance of a summons requiring him to answer a complaint of
A. J. touching a bastard child of which she alleged him to be the father {I),
and alleged that he committed perjury on the hearing of that complaint.
The magistrates' clerk produced a book containing the minutes made
by him on the occasion, headed ' Ann J. v. E. N., affiliation,' and then
the evidence was set out. There was no other evidence of the proceed-
ings before the justices. It was objected that the summons ought to
have been produced, or notice to produce it served on prisoner. Wight-
man, J., said : ' 7 & 8 Vict. c. 101, provides that" upon complaint by the
mother, the justices shall have power to summon the putative father,
and upon the appearance of the person so summoned, or upon proof of
the service of the summons, to hear and adjudicate upon the case." A
summons was, therefore, necessary to give the magistrates jurisdiction
to hear the case ; and to prove that they had jurisdiction in this case
it must be proved that the prisoner was duly summoned, either by pro-
duction of the summons, or by secondary evidence, after notice to the
prisoner to produce it. The minutes of examination in this case were
no more than the minutes of a shorthand writer ' (m).

It has been ruled that on indictments for perjury before justices, if
the proceeding there was on a written information it must be produced,
or its loss or destruction accounted for [n).

Petty Sessional Courts now have a register of the minutes and
memorandums of all the convictions and orders of the Court, and all
proceedings directed by rules of Court to be registered (o). The
register is prima facie evidence only in the Court for which it is
kept (p).

Upon trial for perjury committed at the hearing of an information
in bastardy, the indictment alleged the application for a summons, the
issuing thereof, and the hearing upon it, proof of the information, of the
appearance of the defendant, of the hearing, of evidence being given on
both sides, and of no objection being made of the want of a summons,
was held sufficient to shew jurisdiction in the justices who heard the
information, without proof of the summons which issued upon that

(i) R. V. Whybrow, 8 Cox, 438 : R. v. Hughes, 4 Q.B.D. 614, and cases cited

Hurrell, 3 F. & F. 271 : R. v. Carr, 10 Cox, ante, p. 463.

564 (C. C.-R): all cases relating to the pro- (re) R. v. Dillon, 14 Cox, 4, Lopes, J.

duotion of summonses. (o) 42 & 43 Vict. o. 49, s. 22. Summary

(j) R. V. Smith, L. R. 1 C. C. R. 110. Jurisdiction Rules', 1886 and 1906.

R. V. Hughes, 4 Q.B.I). 614, ante, p. 463. (p) Police Commissioner v. Donovan

(i) R. V. Ca.iT,ubimp. [1903], 1 K.B. 895. In other cases it is

[1) The proceedings were taken under only an aide memoire, and does not dispense

7 & 8 Viet. 0. 101, ss. 2, 3, now superseded with proof of summons, &o. R. v. Cox, 10

by 35 & 36 Vict, o. 65, s. 3. Cox, 564 (C. C. R.).

(m) R. V. Newell, 6 Cox, 21. Cf. R. v.

520 Of Offences against the Administration of Justice. [BooK vil.

information ; and a conviction for perjury upon the indictment was
upheld {q).

Proof of the Oath. — The taking the oath must be proved as it is
alleged, unless the indictment is amended. Therefore, if it is averred that
the defendant was sworn upon the Holy Gospels, &c., it will not be
enough to prove that he was sworn in some other manner (r). Where
the allegation in an indictment was, that on the trial of an action the
prisoner ' was duly sworn, and took his corporal oath on the Holy Gospel
of God,' and the proof was that the witness was sworn and examined ;
and it was objected that the particular mode of swearing must be proved,
as the evidence given would apply to the oath of a Jew, or person of any
other religion than the Christian ; Littledale, J., held the proof sufficient,
as the ordinary mode of swearing was the one specified (s). Where an
indictment stated that the prisoner was sworn to speak ' the truth, the
whole truth and nothing but the truth,' and it was proved that the oath
taken was in the form, ' you shall true answer make,' this was held to
be no variance (t).

It is necessary to prove that the oath was taken in a place over which
the Court of trial for the perjury has jurisdiction, but, where the oath is
proved to have been taken in the county in which the defendant is in-
dicted, variance between indictment and proof as to the place of taking
the oath are immaterial {u).

The recital of the place where the oath is administered in the jurat
of an affidavit is sufficient proof that the oath was administered at the
place named (v). Where, therefore, perjury was assigned on an answer
in Chancery, and the defendant's signature to the answer, and that of the
Master in Chancery to the jurat, were proved, and that Southampton
Buildings, which the jurat recited as the place where the oath was admin-
istered, was in the county of Middlesex ; Tenterden, C.J., held that this
was sufficient proof that the oath was administered in Middlesex («;).
So where on an indictment for perjury committed in an affidavit, the
original affidavit was produced, and proved to be signed ' J. T.,' in the
handwriting of the prisoner, and the jurat was 'Sworn in open court
at Westminster Hall, the 10th day of June, 1846, by the Court,' and
it was proved that the words ' By the Court ' were in the handwriting
of one of the masters of the Court, by whom the jurats of affidavits
are signed when the affidavits are sworn in Court. It was objected
that it should be shewn that the master was in Court when the prisoner
was sworn before him. Erie, J., said: 'We have proof of the hand-
writing of the party sworn, and of the officer, who is authorised to
administer the oath; and when an officer thus authorised writes
under a proper jurat the words " By the Court," I think that that is
sufficient evidence that the affidavit was sworn before him, and properly
sworn in Court ' {x). And upon an indictment in Middlesex, it may

(q) R. V. Smith, L. R. 1 C. C. R. 110. Watson, B.

(r) R. V. McCarther, Peake (3rd ed.) 211. («) R. v. Taylor, Skin. 403.
Kissing the book and lifting the hand are {v) E. v. Spencer, 1 C. & P. 260, Tenter-
directory only. R. V. Haly, 1 Crawf. & den, C.J.
Dix. Circ. Ct. (Ir.) 199. (w) R. v. Spencer, supra.

(s) R. V. Rowley, Ry. & M. 299. (x) R. v. Turner, 2 C. & K. 732.

(«) R. V. Southwood, 1 F. & F. 350,

CHAP. 1.1 Of Perjury. 521

be shewn that the oath was in fact taken in Middlesex, although the jurat
state it to have been sworn in the city of London (y). The prisoner must
of course be identified as having sworn the oath.

On an indictment for perjury, in an answer in Chancery, sworn before
the passing of the Judicature Acts, the bill must be produced and proved
in the usual way (2;). Proof of the defendant!s signature, and that of the
master before whom the answer purported to be sworn, was evidence
of the defendant's having sworn to the truth of the contents, without
calling the person who wrote the jurat, or proving the identity of the
defendant as being the very same person who had signed the answer (a).
But unless there was such proof of the defendant's signature, or some
other sufficient proof to identify him as the person by whom the oath
was taken, no return by commissioners or of a master in Chancery was
sufficient (b). In a case upon 31 Geo. II. c. 10, s. 24 (for taking a false
oath to obtain administration to a seaman's effects, in order to receive
his wages), it was held necessary to prove, directly and positively, that it
was the prisoner who took the oath (c).

On an indictment for perjury all the evidence referable to the fact
on which the perjury is assigned must be proved (d) : such prefatory
averments and innuendoes as are stated in the indictment with this
object (e). On an indictment for perjury on the trial of an action it was
held sufficient to go to the jury if that a witness deposed for recollection
the evidence given by the prisoner, though he did not take it down in
writing, and could not say with certainty that it was all the evidence
given by the prisoner, but could only say with certainty that it was all
he gave on that point, and that he said nothing to qualify it (/).

Where a prisoner is indicted for perjury in evidence given on the trial
of a cause, it is only necessary for the prosecution to prove so much
of that evidence as is relevant to the matter in issue on the trial for
perjury ; but if the prosecution prove the whole of the prisoner's
evidence on the former trial, and it refers to any deed or other document,
which is so mixed up with it that it is necessary to be read in order to
make the evidence intelligible, the prisoner is entitled to have it put in

{y) R. V. Emden, 9 East, 437. they require the prosecutor to anticipate

is) 3 Stark. Ev. 859, citing R. v. AUovd, the defence (2 Chit. Cr. L. 312 ; 3 Stark.

1 Leach, ] 50. Ev. 858), and so far as inconsistent with the

(a) R. V. Benson, 2 Camp. 508. R. v. rule above stated, are not now law. The

Morris, 2 Burr. 1189; 1 Leach, 50. The defendant can, of course, cross-examine the

Court of Chancery made a general order witness who proves his evidence to prove

that all defendants should sign their that he corrected or explained his evidence,

answers with a view to the more easy proof R. v. Carr, 1 Sid. 418.

of perjury in answers. 2 Burr. 1189. See {/) R. v. Rowley, libi sup. In R. v.

R. V. Turner, 2 C. K. 732. Munton, 3 C. & P. 498, three witnesses

(6) Id. ibid. stated what the defendant had said on the

(d) R. V. Rowley, Ry. & M. Ill, 229, the defendant was convicted, although
Littledale, J. none of the witnesses took down the evi-

(e) Stark. Ev. 859. There are rulings by dence as it was given, and none of them
Kenyon, C.J., that the whole of the defend- professed to state the whole of the evidence
ant's evidence must be proved, unless the given. And this course has been followed
perjury is assigned on a point which first in subsequent cases. R. v. Meek, reported,
arose on his cross-examination. R. t. 9 C. & P. 513, as to another point. R. v.
Jones, Peake (3rd ed.), 51. R. v. Dowlin, Ann Bird, Gloucester Spr. Ass. 1842, Cress-
ibid. 227. These rulings have been criti- well, J., ante, p. 500.

cised by text writers as anomalous, in that

522 Of Offences against the Administration of Justice, [book vif

and read for that purpose ; but he is not entitled to require it to be
regularly proved by calling the attesting witness or the like (gr).

Where the perjury is assigned on an affidavit, deposition or examina-
tion signed by the prisoner, the original must be produced and verified,
and secondary evidence is not admissible {h), except on proof that the
original is lost or destroyed (i), or under the control of the prisoner (/).

It seems that if a party produces an affidavit, purporting to have been
made by him before commissioners in the country, and makes use of it in
a motion in the cause, it will be evidence against him that he made it {h).

Upon an indictment for perjury alleged to have been committed
upon the hearing of an information for sporting without a game certifi-
cate, in order to prove what the defendant swore before the magistrate,
his deposition taken in writing 'oefore the magistrate was put in, and
it was held that evidence was not admissible of other things stated by
the defendant, when he was examined as a witness before the magistrate,
but which were not contained in the written deposition (I).

Upon an indictment for perjury in an affidavit which was signed
with the mark of the defendant, it appeared on production of the affidavit
that the jurat omitted to state that it was read over to the defendant (m) ;
Littledale, J., said : ' As the defendant is illiterate, it must be shewn that
she understood the affidavit. In those cases where the affidavit is made
by a person who can write, the supposition is that such person was
acquainted with its contents, but in the case of a marksman it is not so.
If in such case the master by the jurat authenticates the fact of its having
been read over, we give him credit ; but if he does not, and the fact were
so, he ought to be called to prove it. I should have difficulty in allowing
the evidence of any other person to that fact.' And no evidence being
adduced to shew that the affidavit was read over in the presence of the
defendant, it was held that the assignments of perjury on this affidavit
could not be supported (n).

{q) R. V. Smith, 1 P. & F. 98, Erie, J. whether any person took it down or not.

(h) If copies are produced, they must be Robinson v. Vaughton, 8 0. & P. 252,
office or examined copies, and not obviously Alderson, B. Inasmuch, therefore, as all
defective. R. v. Christian, MSS. C. S. G. the defendant said might have been proved
C. & M. 388, Denman, C.J. In that case, by parol, it is difficult to see how the depo-
upon an indictment for perjury, a copy of sition being put in could prevent other
a bill in Chancery was rejected which con- matters not contained in it from being
tained many abbreviations, and had all the proved by parol. The distinction between
dates in figures, it being proved that in the depositions in felony and in summary con-
original bill all the words were written at victions was not noticed in this case, nor
full length, and all the dates expressed by was any reference made to R. v. Harris,
words. 1 Mood. 338. And the decision in the text

(i) Vide post, Bk. xiii. c. i. ' Evidence.' appears at variance with the ordinary prac-

{j) R. V. Milnes, 2 F. & F. 10, Hill, J. tice of examining a witness in cases of

Taylor on Evidence (10th ed.), s. 1535. felony as to other statements made by him

{k) R. V. James, Show. 397. 3 Stark. before the committing magistrate, after his

Evid. 857. And see Briokell v. Hulse, 7 A. deposition had been put in and read.

& E. 454. C. S. G.

(/) R. V. Wylde, 6 C. & P. 380, Park, J. (m) Unless the jurat so states, other evi-

The correctness of this decision seems ques- denoe must be given that the affidavit was

tionable. In the case of summary convic- read over to the defendant,

tions there is no statute which requires {n) R. v. Hailey, Ry. & M. 94. It was

magistrates to take down the evidence in also held in this ease, that where one affi-

writing, and therefore what a party says davit, which has a perfect jurat, refers to

in an examination before » magistrate on another affidavit which is inadmissible for

such an occasion may be proved by parol, want of proof that it was read over to the

CHAP. 1.] Of Perjury. 523

Where the evidence was given orally it must be proved by a person
present when it was given, e.g., a shorthand writer or other person who
took a note of it which he can verify, or a person who can swear from
memory to the substance of the evidence. The clerk of the Court may
be called for this purpose, but it is unusual and inexpedient, even if
lawful, to call the judge.

Where a bill of indictment was preferred for perjury, alleged to have
been committed at Quarter Sessions, it was proposed to examine the chair-
man of the Quarter Sessions at the trial at which the alleged perjury
was committed, but he expressed a desire not to be examined as a witness
to prove what was sworn before him ; Patteson, J., held that he ought not
to be examined. He was the president of a Court of Record, and it would
be dangerous to allow such an examination, as the judges of England
might be called upon to state what occurred before them in Court (o).

On an indictment for perjury committed on a trial at the
assizes before a Queen's counsel, his notes of the evidence, proved
to be in his handwriting, were tendered in evidence, but were held
inadmissible {f).

A grand juror in England may not be called to prove perjury
committed before the grand jury {q).

In a case of perjury where the statements of the prisoner had not
been taken down and were proved from memory, some observations
being made as to the judge of the County Court who had tried the case
not being called to prove his notes, though he was willing to appear ;
Byles, J., said that the judges of the superior Courts ought not, of course,
to be called upon to produce their notes. If he were subpoenaed for
such a purpose he should certainly refuse to appear. But the same
objection was not applicable to the judges of inferior Courts ; he saw
no reason why they should not be called, especially where, as in this
case, the judge was willing to appear (r).

In R. V. Withers (s) the notes of a County Court judge seem to have

defendant, the former affidavit cannot be suming, however, that the inconveniences
read. The report does not state in what in their ease were considerable, it seems
manner the one affidavit referred to the worthy of further consideration how far
other. Cf. R. v. Petricus, 67 J. P. 378. tha^i can prevent^ th^ir liability to bg, called
(o) R. V. Gazard, 8 C. & P. 595. The as witnesses. The general rule undoubtedly
gentleman in question was one of the grand is, that' every person is liable' to be' com-
jurors who had to consider the bill, and the pelled to give evidence in a criminal case,
grand jury asked the judge whether he and it may be dangerous to introduce ex-
ought to be examined. In the absence of ceptions which may prevent persons from
his evidence, the bill was ignored. The giving evidence either for the Crown or for
case is noted with a query in 3 Stark. 361. the defendant.' 0. S. G.
In R. V. Jones, 6 C. & P. 137, on an indict- (p) R. v. Child, 5 Cox, 197, Talfourd, J.
ment for perjury, the chairman of the Nor is the conviction or judgment on the
Worcestershire Quarter Sessions proved trial in which the false oatii was taken,
what a witness swore on a trial before him R. v. Goodf eUow, C. & M. 569.
at the Quarter Sessions. ' It would, no {q) R. v. Hughes, 1 0. & K. 529, Tindal,
doubt, be extremely inconvenient if the C.J. 8ecus in Ireland, 1 & 2 Vict. c. 37, s. 2.
judges were called upon to give evidence as (r) R. ■;;. Harvey, 8 Cox, 99. Cf. R. v.
to what occurred before them in court, but Morgan, 6 Cox, 107. R. v. Newall, ihid. 21.
the inconvenience in the case of chairmen (s) R. v. Withers, 4 Cox, 17. The in-
of Quarter Sessions is comparatively slight, dictment alleged that the prisoner falsely,
especially as they are usually present at the swore that the words J. S. were written by
Assizes, and the evidence must be given in J. S. at the house of M. P. in the parish of
the county where they are chairmen. As- M. in the county of G. The proof by the

524 Of Offences against the Administration of Justice, [book vii.

been used on a trial for perjury in a County Court to prove the evidence
given by the prisoner there.

Statements or admissions by the prisoner, whether sworn or unsworn,
may be put in evidence against him to prove any allegation in the indict-
ment. Thus statements made by the prisoner in a petition to an insolvency
Court, uncontradicted by any conflicting testimony, were held good
evidence to prove allegations on an indictment for perjury as to the
condition of the prisoner's affairs and the presentation of the petition (t).

Where an indictment for perjury alleged that a bill was pending
in the Court of Chancery, and that it became material to ascertain whether
an annuity granted by G. H. to the defendant, or granted to J. B. T?.,
as trustee for the defendant, had been paid up to 1828, and that the
defendant falsely swore that the annuity had not been paid up to 1828 ;
and in order to shew that B., who was abroad, had paid the money to
the defendant, it was proved that B. had sent money to his banker's
by his clerk ; it was held that what the clerk said about the money at the
time he paid it into the banker's was admissible in evidence, on the ground
that it was a declaration made by an agent acting at the time within
the scope of his authority (u).

As to evidence of handwriting where the perjury is assigned on a denial
of a signature, see 28 & 29 Vict. c. 18, s. 8, post, Book XIII. ' Evidence ' (v).

On an indictment for perjury alleged to have been committed on
the trial of A. P., for an indecent assault, it appeared that the prisoner
had sworn that P. had assaulted her at a certain time and place, but on
cross-examination she had admitted that certain liberties had been taken
without resistance ; whereon the judge directed an acquittal. P. and
others were called to prove that no such assault could have been com-
mitted at the time alleged ; and it was held that the prisoner was entitled
to prove what her conduct was immediately after the alleged assault ;
that she had made immediate complaint ; and that all the evidence which
was admissible on the trial of the assault was admissible for the purpose
of shewing that the prisoner was not guilty (w).

The defendant is of course entitled to adduce evidence to prove that
the evidence alleged to be false was qualified or explained by later answers,
whether in an oral examination or on affidavits, &c. (x).

Competency. — Most of the common law rules as to the competency

judge's notes was that the prisoner swore to think that the second signature was ad-

as alleged, except that they did not describe missible as part of the transaction out of

M. P.'s house as in the parish of M. Rolfe, which the charge rose. And, the prisoner

B., held that the allegation might be made not objecting, the paper was handed to the

out by proving orally that M. P.'s house jury,

was in that parish. (w) R. v. Harrison, 9 Cox, 503.

(() R. V. Westley, Bell. 193 (C. C. R.). (x) R. v. Carr, 1 Sid. 418 : 2 Keb. 576.

(u) R. V. Hall, 8 C. & P. 358, Littledale, In that case an answer in Chancery had

J. been excepted to as insufficient, and a

(v) In R. V. Taylor, 6 Cox, 58 (decided second answer was put in explaining the

before that Act), the defendant had, in a generality of the first. Upon a trial at bar.

County Court action, sworn that the signa- it was held that nothing could be assigned

ture to a paper was not his. He had then, as perjury which was explained by the

on the direction of the judge, written his second answer. ' At which unexpected

name on a piece of paper, and the judge evidence and resolution the counsel for the

had compared this writing with that of the prosecution were surprised.'
disputed writing. Wightman, J., inclined

CHAP. I.] Of Perjury. 525

of witnesses have been abrogated by the statutes set forth, post,
Book XIII. Chapter V. (' Evidence '). The remaining exceptions relate
to infants of tender years, persons of unsound mind, and the husband
or wife of the accused.

Where, upon an indictment for perjury committed upon a criminal
trial, the alleged perjury arose upon evidence given in reply to the testi-
mony of one of the defendants on the former trial, who was acquitted and
examined as a witness, and the indictment did not state his acquittal,
nor did the minute of the verdict produced shew it ; it was held that,
although the evidence of a shorthand writer, who stated that the defend-
ant was acquitted and then examined, was not any proof of his acquittal,
yet it was good proof that he was examined («/).

Sect. II. — Perjury under the Statute of Elizabeth.

By 32 Hen. VIII. c. 9, s. 3 (1540), it is inter alia provided that ' no
person or persons of what estate, degree, or condition soever he or they
be do hereafter unlawfully ' . . . ' suborn any witness by letters, rewards,
promises, or by any other sinister labour or means ' . . . ' to the pro-
curement or occasion of any manner of perjury by false verdict, or other-
wise in any manner of court aforesaid,' i.e. in any of the King's Courts
which have authority by the King's Commission, patent, or writ, to hold
plea of lands or determine the title to lands. The penalty is forfeiture
of £10 by action or information, whereof half goes to the King, half to
the person suing.

5 Eliz. c. 9 (1562) {z), after reciting the above enactment, provides
(sect. l)that' all and every such person and persons which . . . shall unlaw-
fully and corruptly procure any witness or witnesses by letters, rewards,
promises, or by any other sinister and unlawful labour or means what-
soever, to commit any wilful and corrupt perjury, in any matter or cause
whatsoever now depending, or which hereafter shall depend in suit and
variance, by any writ, action, bill, complaint, or information, in any wise
touching or concerning any lands, tenements, or hereditaments, or any
goods, chattels, debts, or damages, in any of the courts before mentioned {a) ,
or in any of the Queen's Majesty's courts of record, or in any leet,
view of frank-pledge or law-day, ancient demesne court, hundred court,
court baron, or in the court or courts of the stannary in the counties
of Devon and Cornwall ; or shall likewise unlawfully and corruptly procure
or suborn any witness or witnesses, which shall be sworn to testify in

iy) R. V. Brown, M. & M. 315, Tenter- King's Courts of Chancery, the Star Cham-
den, J., after consulting the other judges of ber, the Whitehall, or elsewhere within any
the Court of King's Bench. The acquittal of the King's dominions of England or
was material only on the question of the Wales, or the marches of the same, where
competence of such defendant to give evi- any person or persons have or from thence-
dence on the former trial. forth should have authority by virtue of the

(z) Made perpetual by 29 Eliz. c. 5, s. 2, King's commission, patent, or writ, to hold

and 21 Jac. 1, c. 28, d. 8. The numbering plea of land, or to examine, hear, or deter-

of the sections in the text follows that of mine any title of lands, or any matter of

the Revised Statutes (2nd ed.) which dif- witnesses concerning the title, right, or

fers from the numbering in Ruffhead's interest of any lands, tenements, or here-

edition. ditaments.'

(a) Viz. (as in 32 Hen. VIII. c. 9), ' the

526 Of Offences against the Administration of Justice, [book vii.

perpetuam rei memoriam ; that then every such offender or offenders
shall for his, her, or their said offence, being thereof lawfully convicted
or attainted, lose and forfeit the sum of forty pounds : and if it happen
any such offender or offenders, so being convicted or attainted as afore-
said, not to have any goods or chattels, lands, or tenements, to the value
of forty pounds, that then every such person so being convicted or attainted
of any the offences aforesaid shall for his or their said offence suffer
imprisonment by the space of one half-year, without bail or mainprize,
and to stand upon the pillory (b) by the space of one whole hour, in some
market town next adjoining to the place where the offence was committed,
in open market there, or in the market town itself where the offence was
committed ...'(c).

Sect. 2. ' If any person or persons . . . either by the subornation, un-
lawful procurement, sinister persuasion, or means of any others, or by
their own act, consent, or agreement, wilfully and corruptly commit any
manner of wilful perjury, by his or their deposition (d) in any of the
Courts before mentioned, or being examined ad perpetuam rei memoriam,
that then every person or persons so offending, and being thereof duly
convicted or attainted by the laws of this realm, shall for his or their
said offence lose and forfeit twenty pounds, and to have imprisonment
by the space of six months without bail or mainprize' . . . 'and if it
happen the said offender or offenders so offending not to have any goods
or chattels to the value of twenty pounds, that then he or they to be set
on the pillory (b) in some market-place within the shire, city, or borough,
where the said offence shall be committed, by the sheriff, or his ministers,
if it shall fortune to be without any city or town corporate; and if it
happen to be within any such city or town corporate, then by the said
head officer or officers of such city or town corporate, or by his or their
ministers, and there to have both his ears nailed. ...'(c).

Sect. 2 further provides that one moiety of the said forfeitures shall
be to the Queen, and the other moiety to such person as shall be grieved,
hindered, or molested by reason of any of the offences before mentioned,
that will sue for the same, &c. ; and sect. 3, that as well the judge and
judges of every such of the said Courts where any such suit shall be, and
whereupon any such perjury shall be committed, as also the justices of
assize and gaol delivery, and justices of the peace at their quarter
sessions (e), both within the liberties and without, may inquire of, hear, and
determine all offences against the said Act. And it is provided (sect. 5) that
the said Act shall no way extend to any spiritual or ecclesiastical Court,
but that every such offender, as shall offend in term as aforesaid, shall be
punished by such usual and ordinary laws as are used in the said Courts.
And it is also provided (sect. 7) that the said statute shall not restrain the
authority of any judge having absolute power to punish perjury before

(6) The pillory was finally abolished in Taylor, Skin. 403, that the bare making

1837. Vide ante, p. 249. of an affidavit without producing or using

(c) The disability to be sworn as a wit- it was not enough,
ness until the judgment has been reversed (e) This jurisdiction is taken away by 5

is abrogated by 6 & 7 Vict. c. 85. & 6 Vict. o. 38, s. 1. S. 4 is repealed. S. 6

{d) It would seem that the deposition provides penalties for non-attendance of

must be filed or used. Stark. Cr. PI. 121. witnesses.
And see 3 Stark.' Evid, 857, citing R. v.

CHAP. I.] Of Subornation of Perjury. 527

the making thereof ; but that every such judge may proceed in the pun-
ishment of all offences punishable before the making of the said statute,
in such wise as they might have done and used to do to all purposes, so
that they set not on the offender less punishment than is contained in the
said Act (/).

The statutes of Henry and Elizabeth did not apply to a witness for
the Crown {g). They are now seldom if ever resorted to Qi), the remedy
at common law or under other statutes being simpler and more extensive.
For the interpretation of the old statutes, see 1 Hawk. c. 69 ; Bac.
Abr. tit. ' Perjury '(B); 2 Hale, 191, 192 ; 2 Eolle Abr. 77.

Sect. III. — Subornation of Perjury.

Subornation of perjury is a misdemeanor indictable at common law [i],
and is punishable in the same manner as perjury (/). It consists in pro-
curing a man to take a false oath amounting to perjury, who actually
takes such oath {k). The offence is in substance the same as counselling
or procuring the commission of the misdemeanor of perjury, and is punish-
able in the same manner as the principal offence under sect. 8 of the
Accessories, &c., Act, 1861 il).

From the definition of the offence it follows that to justify conviction
it must be proved that the perjury was committed and was due to the
procurement. The proof cannot be made by putting in the record or
certificate of the conviction of the perjury {I).

As to the form of the indictment, see 14 & 15 Vict. c. 100, s. 21,
ante, p 482. A suborner may be indicted and tried with the perjurer,
and more than one person may be included in the same indictment for
subornation (m).

If the person incited to take such an oath doss not actually take it, the
person by whom he was so incited is not guilty of subornation of perjury,
but is guilty of an indictable misdemeanor (n), and is liable to be
punished by fine and (or) imprisonment (o).

An indictment charged that the defendant, an attorney, being retained
to defend W. against a charge of picking L.'s pocket, deceitfully pro-
cured himself to be employed by L., and persuaded L. to swear before the
grand jury that he did not know who picked his pocket, which he did, and
no bill was returned. An objection was made that L.'s evidence was
not stated to have been false ; but, upon a case reserved, the judges
thought it unnecessary, as the defendant's crime was the same, unless
he knew L.'s evidence to be true, and that he should have proved (p).

(/) As to present punishments, OT^eareJe, (m) R. v. Rhodes, 2 Ld. Eaym. 886;

p. 479. and ante, p. 502n.

(g) Be Rowland ap Eliza, 3 Co. Inst. (n) R. v. Reilly, 1 Leach, 454.

164. (o) Vide ante, p. 203. 1 Hawk. c. 69,

(h) Buxton V. Gouch, 3 Salk. 269. s. 10. 2 Chit. Cr. L. 317. Bac. Abr. tit.

(»") 1 Hawk. c. 69, o. 10. ' Perjury.'

(/) Ante, p. 479. (p) R- '"■ Edwards, Easter Term, 1764,

(k) 1 Hawk. u. 69, s. 10. 2 Chit. Cr. L. MS. Bayley, J. As to dissuading witnesses

317. from giving evidence, see 'post, p. 541.

(I) Ante, p. 138. 2 Chit. Cr. L. 317.

528 Of Offences against the Administration of Justice, [book vii.

Sect. IV. — False Oaths not Amounting to Perjury.

It has already been stated, ante, p. 460, that false oaths (q) in merely
private matters are not punishable as perjury, e.g., oaths in making a
bargain (r).

In some cases, relating to matters of public concern, where a false
oath has been taken, the party may be prosecuted by indictment at
common law, though the offence may not amount to perjury. Thus
it appears to have been held that any person making or knowingly using
any false affidavit taken abroad (though perjury could not be assigned
on it here), in order to mislead our Courts of justice, is punishable as a
misdemeanor (s); and EUenborough, C.J., said, 'that he had not the least
doubt that any person making use of a false instrument in order to pervert
the course of justice was guilty of an offence punishable by indictment' (t).

And though a master extraordinary in Chancery had no authority to
administer an oath in matters in the Court of Admiralty, a person who
made before him an affidavit, with a view to its being received by the
Court of Admiralty, knowing at the same time it was false, was held
guilty of a misdemeanor at common law (u).

The indictment stated that the prisoner, being minded to procure a
marriage between himself and A. B., went before a surrogate, and was
sworn to an affidavit in writing, that the said A. B. had been residing
four weeks in the parish of S., whereas she had not, and so he had com-
mitted perjury ; and the indictment had all apt allegations of an
indictment for perjury. On a case reserved it was held that perjury
could not be assigned upon an oath before a surrogate, and that as the
indictment did not charge that the defendant took the oath to procure
a licence, or that he did procure one, no punishment could be inflicted (v).

Where the false oath is taken under circumstances not amounting
to perjury at common law, or by statute, the taking is an indictable
misdemeanor if done to deceive a public officer, whereby a matter required
by law for the accomplishment of an act of a public nature is illegally
obtained. In R. v. Chapman (w), the third count of the indictment

{q) i.e., verifying a statement. Breach 1 Leach, 64, note (a). The point appears

of promissory oaths, whether public or pri- to have been submitted also in this case to

vate, is not perjury in the modern sense of the consideration of the twelve judges ; but

that word. their opinion was not publicly communi

(r) 1 Hawk. c. 69, ss. 3, 4. cated. See 3 Chit. Cr. L. 713. R. v. Fos

(«) See now 52 & 53 Vict. c. 10, ss. 6, 7 : ter was decided before 4 Geo. IV. c. 76

ante, p. 461. s. 14. Cf. R. v, Verelst, 3 Camp. 432

(t) O'Mealy v. Newell, 8 East, 364. 1 Phillimore v. Machon, 1 P. D. 481.
Hawk. c. 69, s. 3. Bac. Abr. tit. ' Perjury ' {w) 18 L. J. M. C. 152 ; 1 Den. 432

(A). See White v. K. [1906], 4 Australian 2 C. & K. 846. In R. v. Fairie, 9 Cox, 209,

Commonwealth L. R. 152. the indictment alleged that the prisoner,

{u) R. V. Stone, Dears. 357 ; 23 L. J. intending to procure a marriage to be

M. C. 14. Masters extraordinary in Chan- solemnised between himself and E. A. E.,

eery have been superseded by oommis- she being under the age of twenty-one years,

sioners of oaths (52 & 53 Vict. c. 10). without the consent of the natural and

(v) R. V. Foster, MS. Bayley, J., and lawful father of the said E. A. E., to wit,

R. & R. 459. In R. v. Alexander, 1 Leach, without the consent of G. E., he being the

63, the point was submitted to the judges, person whose consent was by law required

and several times considered ; but the before the licence was granted, falsely

result was not communicated, as the pri- swore that G. E., the natural and lawful

soner died in Newgate. R. v. Woodman, father of the said minor, was consenting.

CHAP. 1] Of False Oaths not dvioiiniing to Perjury. 529

stated that W. J. was a surrogate having authority to grant licences for
marriages, and that the defendant applied to the said W. J. to grant a
licence for the solemnization of a marriage between J. B. and S. F.,
and that the defendant, unlawfully intending to obtain such licence for the
said marriage in fraud of the Marriage Act, 1823 (4 Geo. IV. c. 76), for the
purpose of obtaining such licence, before the said W. J. as such surrogate
(he the said W. J. having competent authority (a;),- as such surrogate,
to administer the said oath) did, for the purpose of thereby obtaining
such licence for the marriage of the said J. B. and S. F., falsely corruptly,
&c., swear, &c., that the name of him, the defendant, was J. B., and that
he was one of the parties for whose marriage a licence was then applied
for, and that he was a yeoman and widower, and that the said S. F.
had had her usual place of abode within the parish of W. in the county
of S. for the space of fifteen days then last past. (The count then
negatived the matter sworn in the usual manner.) By means of which
false oath the defendant did then obtain from the said W. J., so being such
surrogate, a licence for the solemnization of a marriage between the said
J. B. and S. F. The prisoner having been convicted, upon a case reserved,
it was contended (1) that this count charged no offence ; (2) that a surro-
gate had no authority to administer an oath, and at all events not this
oath, to the defendant ; (3) that the count did not aver that a written
licence was obtained, or the marriage celebrated by means of such licence.
The Court for Crown Cases Reserved affirmed the conviction, holding that
the count charged a misdemeanor, as it distinctly averred that the
prisoner swore falsely as to S. F. ; and any one material fact falsely
sworn to was sufficient to support the charge. Then the only question
was as to the surrogate's power to administer the oath ; not such an oath
as would support an indictment for perjury, but as would make a party
guilty of a misdemeanor. By the canon law the surrogate had such
power (y), and the Marriage Act, 1823, assumed that he was the proper
person to administer the oath (z). To make a false oath in order to procure
a marriage licence from an officer empowered to grant such licence was
a misdemeanor, because it was a step toward the accomplishment of a
misdemeanor. The actual celebration of the marriage was immaterial.
Anything essentially connected with marriage was a matter of public
concern, so that any step towards its unlawful accomplishment was a
misdemeanor (zz).

In R. V. Hodgkiss (a), the prisoner was indicted for wilful and corrupt
perjury in making a false affidavit before a commissioner for taking oaths
in the Court of Queen's Bench, for the purpose of getting a bill of sale
filed under the Bills of Sale Act, 1854 (6) . The Court r ej ected as surplusage

The affidavit sworn by the prisoner con- Parke, B., vide ante, p. 140. See Anon,
tained the statement set out in the indict- Ventris, 370 eit. The offence is now punish-
ment ; but the prisoner was acquitted for able by the penalties of perjury under the
variance between the indictment and the Marriage Acts, 1840 (3 & 4 Vict. c. 72, s. 4)
evidence, which proved the girl to be the and 1856 (19&20Vict. c. 119, ss. 2, 18). R.
illegitimate daughter of G. E. v. Smith, 4 P. & F. 1099.

{x) Under 4 Geo. IV. c. 76, s. 14. (o) L. E,. 1 C. C. R. 212.

(y) See Canons of 1603 (No. 103). (b) The offence is now perjury by statute

iz) See 7 Will. IV. & 1 Vict. c. 22, s. 30. (41 & 42 Vict. ^. 31, s. 17).

{zz) R. V. Chapman, 18 L. J. M. C. 156,

VOL. I. 2 M

530 Of Offences against the Administration of Justice, [book vii.

the words describing the offence as perjury, and held that without those
words the indictment sufficiently stated a common law misdemeanor,
in taking a false oath for which the defendant could be properly convicted,
and was liable to the appropriate common law punishment (c).

In the Official Index to the Statutes will be found the numerous
enactments punishing as perjury or as a misdemeanor the making of
false statements on oath for matters of public concern, e.g., on registering
a bill of sale {d), or a document of title to land (e), or a marriage (/), or
for the purpose of elections (g).

Sect. V. — Fabrication of Evidence.

Steps taken for the manufacture or fabrication of false evidence may
be indicted as attempts to commit the misdemeanor of perverting the
course of justice. In R. v. Vreones (A) the defendant was tried and
convicted upon a count of an indictment alleging in substance : That
by the terms of a contract for the purchase of a cargo of wheat, it was
provided that any dispute arising under the contract should be referred
to two arbitrators, whose award should be final and conclusive, that the
defendant was appointed by the sellers to take samples of the cargo
upon the arrival of the ship ; that such samples were then taken and
placed in bags sealed with the seals of the buyer and seller of the cargo,
in accordance with the custom of merchants at the port, and for the
purpose of being used as evidence before the arbitrators ; that the defend-
ant afterwards, intending to deceive the arbitrators to be appointed
under the contract and wrongfully to make it appear to them that the
bulk of the cargo was of better quality than it really was, so as to pervert
the due course of law and justice, unlawfully and designedly removed
the contents of the sealed bags and altered their character, and returned
to the bags a quantity of wheat in a different condition, and altered in
character and value, with intent thereby to pass the same off as true and
genuine samples of the bulk of the cargo ; and that afterwards the defend-
ant forwarded the samples so altered to the London Corn Trade Associa-
tion, with intent that the same should be used as evidence before such
arbitrators, and thereby to injure and prejudice the buyer, and to pervert
the due course of law and justice. The samples were not in fact used.
But on a case reserved after conviction the Court held that the indictment
aptly described an attempt to pervert justice, and that arbitrators must
be considered as administering public justice (i). Under sect. 192 of the
India Penal Code, fabrication of false evidence is punishable as a
substantive offence ( j).

(c) The only authority cited was R. v. (/) Vide post, p. 1012.
Foster, ante, p. 528. Martin, B., said {L. R. (g) Vide post, p. 643.

1 0. C. R. 213) that what was there held (h) [1891] 1 Q.B. 360: 60 L. J. M. C. 62,

was that no punishment could be inflicted, (i) Reference was made by Coleridge,

because the indictment did not state facts L.C.J., to R. d. Crossley, 7 T. R. 315 (perjury

sufficient to constitute the ofl'ence of taking on an affidavit not in fact used), and by

a false oath. PoUock, B., to 1 East, P. 0. o. 18, s. 4

(d) 41 & 42 Vict. c. 31, s. 7. (pubhc cheats levelled against the public

(e) 38 & 39 Vict. c. 87, s. 101 (land trans- justice of the kingdom).

fer) ; 47 & 48 Vict. c. 54, s. 7 (Yorkshire (j) See Mayne, Ind. Grim. Law (ed. 1896),

land registry). P- 513.

CHAP. 1.] Of False Declarations. 531

Sect. VI. — Of False Statutory Declarations.

This section deals with those solemn declarations which are not,
strictly speaking, made on judicial proceedings, but are for the verifi-
cation of certain matters of public or private concern. The term
statutory declaration when found in an Act of Parliament means, unless
a contrary intention appears, a declaration made by virtue of the
Statutory Declarations Act, 1835 (k). That Act (5 & 6 Will. IV. c. 62),
' An Act ... to make provision for the abolition of unnecessary
oaths,' by sect. 2 enacts, ' that in any case where, by any Act or Acts
made or to be made relating to the revenues of customs or excise, the post-
office, the office of stamps and taxes, the office of woods and forests, land
revenues, works, and buildings, the war-office, the army pay-office, the
office of the treasurer of the navy, the accountant-general of the navy,
or the ordnance. His Majesty's treasury, Chelsea hospital, Greenwich
hospital, the Board of Trade, or any of the offices of His Majesty's principal
secretaries of state, the India board, the office for auditing the public
accounts, the national debt office, or any office under the control, direction,
or superintendence of the treasury, or by any official regulation in any
department, any oath, solemn affirmation, or affidavit might, but for the
passing of this Act, be required to be taken or made by any person on the
doing of any act, matter, or thing, or for the purpose of verifying any book,
entry, or return, or for any other purpose whatsoever, it shall be lawful
for the treasury, if they shall so think fit, by writing under their hands
and seals, to substitute a declaration to the same effect as the oath,
solemn affirmation, or affidavit which might, but for the passing of this
Act, be required to be taken or made ; and the person who might, under
the Act or Acts imposing the same, be required to take or make such oath,
solemn affirmation, or affidavit, shall, in presence of the commissioners,
collector, other officer, or person empowered by such Act or Acts to
administer such oath, solemn affirmation, or affidavit, make and sub-
scribe such declaration, and every such commissioner, collector, other
officer, or person is hereby empowered and required to administer
the same accordingly ' (I).

By sect. 3, the declaration so substituted is to be published in the
Gazette, and after twenty-one days from the date of the Gazette the pro-
visions of this Act are to apply (m).

Sect. 4. ' After the expiration of the said twenty- one days it shall
not be lawful for any commissioner, collector, officer, or other person
to administer or cause to be administered, or receive or cause to be
received, any oath, solemn affirmation, or affidavit, in the lieu of which
such declaration as aforesaid shall have been directed by the treasury
to be substituted.'

Sect. 5. ' If any person shall make and subscribe any such declara-
tion as hereinbefore mentioned in lieu of any oath* solemn affirmation,

{k) Interpretation Act, 1889, s. 21. (m) Orders were made in 1835 and 1836,

(/) The power given by this section is which are printed in Stat. R. & 0. lievised

preserved by s. 14 (9) of the Promissory (ed. 1904), vol. xi. tit. ' Statutory Declara-

Oaths Act, 1868 (31 & 32 Vict. u. 72). tion.'

2 M 2

532 Of Offences against the Administration of Justice, [book vil.;

or affidavit, by any Act or Acts relating to the revenues of customs (m),
or excise (o), stamps and taxes (p), or post-office, required to be made on
the doing of any act, matter, or thing, or for verifying any book, account,
entry, or return, or for any purpose whatsoever, and shall wilfuUy make
therein any false statements as to any material particular, the person
making the same shall be deemed guilty of a misdemeanor ' {q).

By sect. 7, 'Nothing in this Act contained shall extend to any oath,
solemn affirmation, or affidavit which now is or hereafter may be made
or taken, or required to be made or taken in any judicial proceeding,
in any court of justice, or in any proceeding for, or by way of summary
conviction, before any justice or justices of the peace ; but all such oaths,
affirmations, and affidavits shall continue to be required and to be
administered, taken and made as well, and in the same manner as if this
Act had not been passed.'

Corporate bodies. — Sect. 8. ' It shall be lawful for the universities of
Oxford and Cambridge, and for all other bodies corporate and politic, and
for all bodies now by law or statute, or by any valid usage, authorised to
administer or receive any oath, solemn affirmation, or affidavit, to make
statutes, bye-laws, or orders authorising and directing the substitution
of a declaration in lieu of any oath, solemn affirmation, or affidavit
now required to be taken or made : provided always that such statutes,
bye-laws, or orders be otherwise duly made and passed according to the
charter, laws, or regulations of the particular university, other body
corporate and politic, or other body so authorised as aforesaid.'

Churchwardens. — Sect. 9. ' In future every person entering upon the
office of churchwarden or sidesman, before beginning to discharge the
duties thereof, shall, in lieu of such oath of office, make and subscribe, in
the presence of the ordinary or other person before whom he would, but
for the passing of this Act, be required to take such oath, a declaration
that he will faithfully and diligently perform the duties of his office,
and such ordinary or other person is hereby empowered and required
to administer the same accordingly : provided always, that no church-
warden or sidesman shall in future be required to take any oath on
quitting office, as has heretofore been practised.'

Local Authorities. — Sect. 10. ' In any case where, under any Act or
Acts for making, maintaining, or regulating any highway, or any road, or
any turnpike road, or for paving, lighting, watching, or improving any city,
town, or place, or touching any trust relating thereto, any oath, solemn
affirmation, or affidavit might, but for the passing of this Act, be required
to be taken or made by any person whomsoever, no such oath, solemn
affirmation, or affidavit, shall in future be required to be or be taken
and made, but the person who might under the Act or Acts imposing
the same being required to take or make such oath, solemn affirmation, or
affidavit, shall in lieu thereof, in the presence of the trustee, commis-
sioner, or other persons before whom he might under such Act or Acts
be required to take or make the same, make and subscribe a declaration

{«) See 39 & 40 Vict. c. 36, s. 168, ante, (q) S. 6 refers to the oath of allegiance,

p. 371. the taking whereof is now regulated under

(o) See 32 & 33 Vict. c. 14, b. 25. the Promissory Oaths Acts, 1868 and 1871.,
(p) See 43 & 44 Vict. c. 19, s. 66.

CHAP. I.] Of False Declarations. 533

to the same effect as such oath, solemn affirmation, or affidavit, and
such trustee, commissioner, or other person, is hereby empowered and
required to administer and receive the same ' (r).

Pawnbrokers. — Sect. 12. ' Where by any Act or Acts at the time in
force for regulating the business of pawnbrokers, any oath, affirmation, or
affidavit might, but for the passing of this Act, be required to be taken or
made, the person who by or under such Act or Acts might be required to
take or make such oath, affirmation, or affidavit, shall in lieu thereof make
and subscribe a declaration to the same effect ; and such declaration
shall be made and subscribed at the same time, and on the same occasion,
and in the presence of the same person or persons, as the oath, affirmation,
or affidavit in lieu whereof it shall be made and subscribed would by the
Act or Acts directing or requiring the same be directed or required to be
taken or made ; and all and every the enactments, provisions, and penal-
ties contained in or imposed by any such Act or Acts, as to any oath,
affirmation, or affidavit thereby directed or required to be taken or made,
shall extend and apply to any declaration in lieu thereof, as well and in
the same manner as if the same were herein expressly enacted with
reference thereto ' (s).

By the Pawnbrokers Act, 1872 (35 & 36 Vict. c. 93), s. 29, ' If any
person makes any false declaration under this Act, either as an applicant,
or as identifying an applicant, knowing the same to be false, in any
material particular, he shall be guilty of a misdemeanor, and shall be
liable to the punishment attaching by law to perjury ' {t).

Bank of England.— By 5 & 6 Will. IV. c. 62, s. 14, ' In any case in
which it has been the usual practice of the Bank of England to receive
affidavits on oath to prove the death of any proprietor of any stocks or
funds transferable there, or to identify the person of any such proprietor,
or to remove any other impediment to the transfer of any such stocks or
funds, or relating to the loss, mutilation, or defacement of any bank-note
or bank post bill, no such oath or affidavit shall in future be required to be
taken or made, but in lieu thereof the person who might have been re-
quired to take or make such oath or affidavit shall make and subscribe
a declaration to the same effect as such oath or affidavit.'

By sect. 15, declarations are substituted in lieu of the oaths required
by 5 Geo. 11. c. 7, ' An Act for the more easy recovery of debts in His
Majesty's plantations and colonies in America ' {v), and by 54 Geo. Til.
c. 15, ' An Act for the more easy recovery of debts in His Majesty's
colony of New South Wales.'

Wills. — Sect. 16. ' It shall and may be lawful to and for any attesting
witness to the execution of any will, or codicil, deed, or instrument in

(r) S. 11, as to declarations on obtaining in sohed. 3, No. V. of the Act. The section

patents, was repealed in 1883 (46 cfe 47 Vict. does not apply to pledges above the value

c. 37), and is now replaced by s. 1, subs. 4. of £10. R. v. Tregoning, 63 J. P. 504.

of the Patents Act, 1907 (7 Edw. VII. c. 29). The Act of 1872 does not apply to Ireland.
In patent matters, a declaration is still re- (v) 5 Geo. II. u. 7, was repealed in 1887

quired, which may be statutory or not, as (S.L.R.), and the portions of 54 Geo. III.

from time to time prescribed by rules. c. 15, to which s. 15 relates, were repealed

7 Edw. VII. c. 29, s. 77. as to all the King's dominions in 1892

(s) For s. 13, vide ante, p. 325. (S.L.E..). S. 15 was repealed as to Viotoiia

(t) The declaration referred to is made in 1859 (22 & 23 Vict. c. 12, s. 1).
before a magistrate in the form prescribed

534 Of Offences against the Administration of Justice, [book vii.

writing, and to and for any other competent person, to verify and prove
the signing, sealing, publication, or delivery of any such will, codicil,
deed, or instrument in writing, by such declaration in writing made
as aforesaid, and every such justice, notary, or other officer shall be
and is hereby authorised and empowered to administer or receive
such declaration.'

Crown Suits in Colonies.— Sect. 17. ' In all suits now depending or
hereafter to be brought in any Court of law or equity by or in behalf of
His Majesty, his heirs and successors, in any of his said Majesty's
territories, plantations, colonies, possessions, or dependencies, for or
relating to any debt or account, that His Majesty, his heirs and successors,
shall and may prove his and their debts and accounts, and examine his
or their witness or witnesses by declaration, in like manner as any
subject or subjects is or are empowered or may do by this present
Act ' (w).

Writings generally.— Sect. 18, reciting that ' it may be necessary and
proper in many cases not herein specified, to require confirmation of
written instruments or allegations, or proof of debts, or of the execution
of deeds or other matters,' enacts that ' it shall and may be lawful for any
justice of the peace, notary public, or other officer now bylaw authorised
to administer an oath {x), to take and receive the declaration of any
person voluntarily making the same before him in the form in the schedule
to this Act annexed ; and if any declaration so made shall be false or
untrue in any material particular, the person wilfully making such
false declaration shall be deemed guilty of a misdemeanor ' (y).

Punishment. — Sect. 21. 'In any case where a declaration is substituted
for an oath under the authority of this Act, or by virtue of any power or
authority hereby given, or is directed and authorised to be made and sub-
scribed under tlie authority of this Act, or by virtue of any power hereby
given, any person who shall wilfully and corruptly make and subscribe
any such declaration, knowing the same to be untrue in any material
particular, shall be deemed guilty of a misdemeanor ' [z).

The prisoner was indicted under 5 & 6 Will. IV. c. 62, s. 12 (a), for having
at S., in the county of G., made a false declaration before E. G. H., a
justice of the peace, that he had lost a pawnbroker's ticket. It was
stated in the opening of the case that the prisoner told the pawnbroker
that he had lost the ticket, and the pawnbroker told him that he must
make a declaration of the loss before a magistrate, and for that purpose
handed the prisoner a copy of the ticket and a form, to be filled up
according to the Act ; the prisoner paid for the form, saying he would

(w) This section was repealed as to s. 68 of the Conveyancing Act, 1881 (44 &

Victoria in 1859 (22 & 23 Vict. c. 12, s. 1), 45 Vict. c. 41), the declaration is to be in

and by s. 2 power was given to colonial the form following ; — ' I, ^. 7?., do solemnly

legislatures to repeal, alter, or amend the and sincerely declare, that and I

sections, so far as applicable to the colony make this solemn declaration conscien-

or possession. tiously believing the same to be true, and

(x) See the Commissioners of Oaths Act, by virtue of the provisions of the Statutory

1889 (52 & 53 Vict. c. 10). Declarations Act, 1835.'

(y) See ante, p. 249, for the punishment. (z) Ss. 22, 23 Were repealed in 1874 (37

By s. 19, the same fees are payable on & 38 Vict. o. 35). As to punishments,

declarations as on the oaths in lieu of which vide ante, p. 249.
they are made. By s. 19, as modified by (a) Ante, p. 533.

CHAP. I.] Of False Declarations. 535

go to a magistrate ; he returned the same day with the form properly-
filled up, and with his name and that of Mr. H. attached. Mr. H. was
not able to recollect the fact of the declaration having been made, and
therefore was not present ; but the pawnbroker identified the declaration.
But there was only one witness to prove that the prisoner had not lost
the duplicate. Piatt, B. : 'As regards the proof of the declaration
having been made by the prisoner, I think there may be sufficient
evidence to support the indictment, if you can bring home to him a
knowledge of its contents (6) ; but I am of opinion that the falsity of
that declaration must be proved by the oaths of two witnesses as in a
case of perjury, otherwise there would be but oath against oath.'

In U. V. Morgan (c) the defendant was indicted under the 5 & 6 Will. IV.
c. 62, s. 12, for making a false declaration before a justice for the borough
of Liverpool that she had lost the pawn ticket of certain goods pledged
by her. The clerk to the justice could only speak to the handwriting
of the justice on the declaration, and, from the great number of these
declarations, he could not remember when or where it was made. It
was contended that there was no evidence that the declaration had
been made before the justice acting as such or even within the borough ;
and Gurney, B., held that the objection was good, and that the justice
if called might at all events have proved that he had never taken such
a declaration out of the borough. No authority was cited, and it is
submitted that in view of the authorities above cited the ruling was
wrong.

For other false declarations without oath made punishable as perjury
or misdemeanor, see Chronological Table of the Statutes, tit. ' Perjury ' {d).

Courts of Quarter Sessions have no jurisdiction to try indictments
for making or suborning another to make a false affirmation or declaration
punishable as a misdemeanor (e).

Where a prisoner was indicted for making a false declaration before
a justice in pursuance of the rules of a benefit society, which required a
loss by fire in certain cases to be verified by such a declaration ; it was
objected that sect. 18 of the Act of 1835 did not extend to any declarations
except those mentioned in the preamble of that section ; but Erskine, J.,
held that the section extended to all declarations generally (/).

The prisoner was indicted for making a false declaration under sect. 18,

(h) R. V. Browning, 3 Cox, 437. The said : ' The Courts always give credence to

ruling of the learned Baron was right on the signature of the magistrate or commis-

both points ; though an idle doubt has sioner ; and if his signature to the jurat is

been raised on the first point. If a man in proved, that is sufficient evidence that the

writing admitted that he had made a decla- party was duly sworn, and if the place at

ration before a justice under the Act, no which it was sworn is mentioned in the

doubt can exist that such writing would be jurat, that is sufficient evidence that it was

sufficient evidence against him ; and in this sworn at that place.' And see R. v. James,

case the prisoner produced a declaration in and Brickell v. Hulse, ante, p. 522, and R.

the form under the Act, signed by himself v. Westley, Bell, 193, ante, p. 524.

and the justice, and dealt with it, and ob- (c) 1 Cox, 109.

tained the goods by it, as a valid declara- (d) In particular, see 32 & 33 Vict. e. 62,

tion ; and it is perfectly clear that this was s. 14 (Debtors) ; 50 & 51 Vict. c. 28, s. 8 (3)

abundant evidence that he had made that (Merchandise Marks).

declaration in the manner and with the for- (e) 5 & 6 Vict. c. 38, s. 1, fost. Vol. ii.

malities described in it. In R. v. Spencer, p. 1932.

1 C. & P. 260, ante, p. 520, Tenterden, C.J., (/) R. v. Boynes, 1 C. & K. 65.

536 Of Offences against the Administration of Justice, [book vii.

that he had done no act to encumber certain lands, and that he was in
possession of those lands, and in receipt of the rents and profits thereof.
The declaration was duly made in support of an application to a building
society in 1861, for an advance of £150. The mortgage deed of 1861 to
the building society was produced, but the attesting witness was not
called to prove it. The original conveyance of the property to the prisoner
was put in. It was objected that the declaration was confirmatory of the
mortgage deed, and as that was not proved, it was not shewn that the
matter sworn was material. It was answered that the declaration was
made to confirm the original conveyance, and not the mortgage, which
was executed after the declaration. Byles, J. : ' I am of opinion that the
objection is fatal. The preamble of 5 & 6 Will. IV. c. 62, s. 18 (gr),
must be read with the enacting part ; and as the deed, which rendered
the declaration necessary, is not proved, this indictment cannot be
sustained ' {h).

An indictment alleged that the prisoner was a member of a benefit
society, the rules of which were duly certified, and a transcript of them
filed with the clerk of the peace, and that by a rule of the society- it
was provided that if any free member should have his property destroyed
by fire, he should produce a certificate, and if the property was not insured
the society would indemnify him to a certain amount if the claim were
authenticated by a solemn declaration before a magistrate, and then
charged the prisoner with making a false declaration before a magistrate
contrary to sect. 18 of the Statutory Declaration Act, 1835 (5 & 6
Will. IV. c. 62), that he had sustained a loss by fire. In order to prove
the rules of the society a copy of the rules was produced, and the 24th
rule, which was applicable to the allegations in the indictment, was
proved to have been examined with the transcript at the clerk of the peace's
office ; but no other rule had been so examined ; and Erskine, J., held that
all the rules ought to have been compared. To prove the rules, either
the original transcript should have been produced, or an examined copy
of the whole of it. It was then objected that the indictment was not
proved. But Erskine, J., held that all the statements in the indictment
with reference to the society might be rejected as surplusage, if there was
enough on the face of the indictment to shew that an offence was committed
without any reference to the society or its rules, which appeared to be
the case. The making of the declaration was then proved, and it referred
to the certificate, which was put in ; and Erskine, J., allowed the
persons whose names purported to be signed to it, to prove that their
names were forgeries, as it might go to shew that the declaration was
wilfully false {i).

(g) Ante, p. 534. whether this was not sufficient evidence
(h) R. V. Cox, 9 Cox, 301. against the prisoner when connected with
(i) K. V. Boynes, 1 C. & K. 65. The the 24th rule, proved to have been exam-
declaration mentioned the name of the so- ined with the transcript, of the allegations
ciety, and that the prisoner had ' forwarded in the indictment ? See R. v. Westley,
to the said society a certificate as required ante, p. 524,
by the 24th rule of the said society.' Quosr^

( 536a )-

CANADIAN NOTES.

OF PEEJUEY AND COGNATE OFFENCES.

Sec. 1. — Of Perjury Generally.

Perjury, Definition of. — Code see. 170.

Subornation of Perjury, Definition of. — Code sec. 170(2).

Evidence, what is Included in. — Code sec. 170(3).

Witnesses Defined. — Code sec. 171.

Judicial Proceedings Defined. — Code sec. 171(2).

Who is Guilty of Perjury. — Code sec. 172.

False Statement Under Oath within Canada. — Code sec. 172(a).

False Oath, etc., in Verification of Statement. — Code sec. 172(&).

Subscribing an Affirmation, etc.. Untrue in Whole or Part. — Code
sec. 172(&).

Making False Affidavit out of the Province but within Canada. —
Code sec. 173.

Penalty for Perjury or Subornation. — Code sec. 174.

False Oaths in Extra Judicial Proceedings. — Code sec. 175.

False Statement in Extra Judicial Proceedings. — Code sec. 176.

Fabricating Evidence. — Code sec. 177.

Perjury on Capital Cases. — Code sec. 253.

Order for Indictment on Perjury before Judge. — Code sec. 870.

Certificate of Former Trial. — Code sec. 979.

Punishment. — ^Perjury being an offence punishable with imprison-
ment for more than five years, there is no jurisdiction to impose as
the punishment therefor a fine in lieu of imprisonment (Code sec.
1035), but both imprisonment and fine may be awarded. Rex v.
Legros, 14 Can. Cr. Cas. 161. '

Of Perjury.

Judicial Proceeding. — An examination for discovery is a "judicial
proceeding" as defined by this section, but the Court has a discretion
to refuse to hear a charge of perjury alleged in respect of civil pro-
ceedings while such proceedings are pending. R. v. Thickens (1906),
11 Caa. Cr. Cas. 274.

An examination ordered by a Judge to be held before the registrar
of the Court in a civil proceeding ceased to be a "judicial proceed-
ing" under the Criminal Code sees. 170 and 171 as to the offence of

5366 Perjury, Etc. [book vil.

perjury, when the examiner after swearing the witness leaves the room
in which the examination is being held, although the official steno-
grapher took the depositions in presence of counsel for the parties.

A false statement under oath so made in .the absence of the offi-
cial examiner cannot be made the foundation of a perjury charge.
The King v. Rulofson, 14 Can. Cr. Cas. 253.

False Oath before De Facto Legal Tribunal. — It is perjury imder
the Code to give false testimony before a justice of the peace holding
a judicial proceeding under a provincial law, although the justice was
by the terms of that law disqualified from hearing the charge because
he was not a resident of the county in which the alleged offence took
place. Drew v. The King, 6 Can. Cr. Cas. 424, 33 Can. S.C.R. 228,
affirming Drew v. The King, 6 Can. Cr. Cas. 241.

Materiality. — ^Under the Code, the giving of false evidence con-
stitutes perjury, whether such evidence is material or not, if the false
assertion were known to such witness to be false, and intended by
the witness to mislead the Court, jury or person holding the pro-
ceeding.

Statutory Declaration. — A false statement, made in a statutory
declaration, administered under the "Canada Evidence Act," may
be the subject of a charge akin to perjury under Code sec. 175, for
the object of sec. 36 of the Evidence Act was to provide a means
whereby certain statements not authorized to be made on oath could
be verified.

At Common Law. — It has always been an offence at common law
for a competent witness upon oath in a judicial proceeding before a
Court of competent jurisdiction, to give evidence material to the
issue, which he believes to be false. The common law, however,
stopped there and took no notice of false statements, whether made
upon oath or not, made under other conditions. The perjury had
also to be in a judicial proceeding before a competent tribunal. R. v.
Row (1864), 14 U.C.C.P. 307. And it was, therefore, formerly the
law that false evidence given upon an examination in the absence of
the authority competent to hold such examination was not perjury.
R. V. Gibson, 7 Revue Legale (Que.) 573.

Perjury, etc. — It is not an essential that an information for per-
jury should set out the exact words of the false statement in testi-
mony taken viva voce, the charge may be properly stated by summar-
izing what was in effect the false evidence, specifying the tribunal
and the time and place at which the same was given, and charging
that thereby the accused "unlawfully committed perjury." R. v.
Legros, 14 Can. Cr. Cas. 161.

Intent to Mislead. — Although an "intent to mislead" is an essential
ingredient of the offence, a charge which does not specifically allege
such intent may be sufficient if it gives to the accused notice that he is

CHAP. I.] Affidavits. 536c

charged with having "falsely, wilfully and corruptly" sworn to, or
solenmly declared a statement to the effect and in the words set forth.
R. V. Skelton (1898), 4 Can. Cr. Cas. 467, 2 N.W.T. Rep. 210, 215; R.
V. Dewar, 2 N.W.T. Rep. 194, Cr. Code sec. 852(3).

Joint Affidavit. — A joint affidayit made by the defendant and one
D. stated: "Each for himself maketh oath and saith that he this
deponent is not aware of any adverse claim to or occupation of said
lot." The defendant having been convicted of perjury on this latter
allegation, it was held that there was neither ambiguity or doubt in
what each defendant said, but that each in substance stated that he
was not aware of any adverse claim to or occupation of said lot. R. v.
Atkinson (1866), 17 U.C.C.P. 295. And it has been held that a statu-
tory declaration made jointly by several persons that they know cer-
tain alleged facts is to be construed as a statement by each of them
severally that he knows the matters alleged. R. v. Skelton (1898),
4 Can. Cr. Cas. 467 (N.W.T.).

Several Charges on One Affidavit. — Upon a "speedy trial" upon
several charges of perjury in respect of one affidavit, the trial Judge
is bound to regard the whole affidavit as the sworn statement in respect
of each charge, and should not treat each paragraph of the affidavit
as an entire statement independently of the other paragraphs. The
King V. Cohon, 6 Can. Cr. Cas. 386.

Oath to Voter — A person applying for a ballot at a Dominion elec-
tion in the name of another person entitled to vote may be convicted
of perjury in taking the oath of identity with that person, although
the Elections Act authorizes the administration of the oath of quali-
fication to an "elector" only, and that term must be held to include,
for the purposes of administering such oath and prosecuting the per-
sonator, the person representing hi,mself at the polls as an elector. R.
V. Chamberlain, 10 Man. R. 261.

Declaration Under Provincial Law. — Perjury is not proved in re-
spect of a solemn declaration that there was "no lawful hindrance"
to deponent's proposed marriage by shewing that the deponent knew
the girl to be under twenty-one and that her parent's consent had not
been obtained as required by the provincial law, if the marriage was
valid notwithstanding the absence of such consent.' The King v.
Moraes (1907), 12 Can. Cr. Cas. 145.

Warrant of Arrest.— A warrant of arrest for perjury is sufficient
under Code sec. 1152 if it charges that the accused committed perjury
by swearing that he did not do a particular act specified without al-
leging therein that the statement was sworn with intent to mislead
the Court. R. v. Lee Chu, 14 Can. Cr. Cas. 322.

Indictment. — ^An indictment or charge for perjury in which it is
alleged that the accused committed perjury by falsely, wilfully and
with intent to mislead the magistrate, swearing to a certain statement,

536(Z Perjury, Etc. [book vil.

involves a charge that the accused knew such statement to be false
and will not be quashed for failure to more specifically charge such
knowledge. R. v. Doyle (1906), 12 Can. Cr. Cas. 69.

Where the statutory form of indictment is not followed but the
indictment contains all the averments which the statute requires, the
addition of other unnecessary averments does not invalidate it. R.
V.' Coote (1903), 8 Can. Cr. Cas. 199, 10 B.C.R. 285.

In R. V. Cohon (1903), 6 Can. Cr. Cas. 386, the Supreme Court,
of Nova Scotia held that a charge of perjury is defective as not dis-
closing a crime, if it does not allege that the statement was sworn to
knowing the same to be false, or if such is not the necessary inference
from what is alleged, apart from the declaration in the charge that
the accused "thereby committed wilful and corrupt perjury."

But the decision of the Cohon Case is in conflict with the Quebec
decisions under the statute preceding the Code. It has been held in
the latter province that an indictment following the statutory form
is sufScient if it charges that the accused "committed perjury" by
swearing that (specifying the false oath), without including a specific
statement that it was so done knowing the same to be false. R. v. Bain
(1877), Ramsay's Cases (Que.) 192; R. v. Bownes, Ramsay's Cases
(Que.) 192. See sec. 862 as to statements now unnecessary in counts
for perjury.

* Where a prosecutor has been bound by recognizance to prosecute
and give evidence against a person charged with perjury in the evi-
dence given by him on the trial of a certain suit, and the grand jury
has found an indictment against the defendant, the Court will not
quash the indictment because there is a variance in the specific charge
of perjury contained in the information and that contamed in the
indictment, provided the indictment sets forth the substantial charge
contained in the information. R. v. Broad (1864), 14 U.C.C.P. 168;
and see sees. 852-855.

A count charging the accused with having committed perjury at
an inquest before a coroner is not invalid by reason of the fact that
the tribunal was a coroner and a jury. R. v. Thompson (1896), 4
Can. Cr. Cas. 265, 2 Terr. L.R. 383.

Evidence. — D. being charged with perjury, in the assignments of
perjury and in the negative averments certain facts sworn to by D. in
answering to faits et articles on the contestation of a saisie arret or
attachment were distinctly negatived, in the terms in which they were
made. It was held that under the general terms of the negative aver-
ments it was competent for the prosecution to prove special facts to
establish the falsity of the answers given by D. in his .answers on
faits et articles, and the conviction could not be set aside because of
the admission of such proof. Downie v. R. (1888), 15 S.C.R. 358.

CHAP. I.J Proof of Judicial Proceedings. 536e

In a prosecution for perjury where it appears that the false oath
was taken before a justice receiving the complaint of an offence com-
mitted within his jurisdiction, and acting in the matter within his
jurisdiction, it is unnecessary to offer further evidence that he had
authority to administer an oath. R. v. Callaghan (1860), 19 U.C.Q.B.
364.

A charge of perjury cannot be sustained against a boy under
fourteen without proof of guilty knowledge of wrong-doing. Code
sec. 18 has not changed the common law which presumed against
guilty knowledge where the accused was under the age of fourteen.
The King v. Carvery, 11 Can. Cr. Cas. 331.

It is not essential to the offence of perjury that the notary or other
official should have uttered the words of obligation in administering
the oath ; such words used by the deponent and accompanied by a re-
quest that the affidavit already signed by the deponent should be cer-
tified as sworn, will be sufficient. Re Collins (No. 2), 10 Can. Cr.
Cas. 73.

A plea of autrefois acquit to a charge of perjury in taking the
oath of identity at a polling booth is not supported by a record of
acquittal on a charge of personating an elector at the same time and
place, although the oath of identity and the alleged personation were
in regard to the same elector. A verdict for personation could not
have been received under an indictment for perjury in taking the
oath of identity, although the facts constituting personation must
necessarily be shewn in order to prove the perjury. The King v.
Quinn, 10 Can. Cr. Cas. 412.

Proof of Judicial Proceedings. — Canada Evidence Act, sees. 23,
28(2), 34, 35.

On a charge of perjury committed at the trial of an indictment
such trial and the indictment, verdict, and judgment therein must
be proved as matters of record. Such proof may be given eit'her by
the production of the original record or of an exemplification thereof,
or by a certificate imder Code sec. 979 of the substance and effect of
the indictment and trial. The viva voce testimony of the clerk of
assize and of the official stenographer with the production of the
official book of entry in which the clerk recorded his memoranda of
the proceedings and of the stenographer's notes of the evidence, are
insufficient as legal proof of the fact of the former trial. Where a
conviction has been made without the legal proof required by law of an
essential part of the crime, such defect is a "substantial wrong or mis-
carriage at the trial" and the conviction must be set aside. The King
V. Drummond, 10 Can. Cr. Cas. 340, 10 O.L.R. 456.

Upon a charge of perjury in respect of evidence taken by a magis-
trate on requiring securities to keep the peace imder sec. 748(2) of
the Code, the false statement may be proved by oral testimony, al-

536f Perjury, Etc. [book vii.

though not recorded in the minutes of evidence then made by the
magistrate. R. v. Doyle (1906), 12 Can. Cr. Cas. 69.

Corroboration is required on a charge of perjury. See see. 1002
of the Code.

"Where perjury is charged as having been committed on a sum-
mary trial for an indictable offence under the Code, the formal record
of such sumimary trial must be proved in the perjury case, although
the latter is tried summarily by the same magistrate.

A magistrate holding a summary trial for perjury alleged to have
been committed in a former trial before himself, must not import
into the perjury trial his recollection of the demeanour of the accused
and other witnesses at the former trial; he must be guided solely
by the evidence of the perjury trial considered in view of the de-
meanour of the witnesses thereat. R. v. Legros, 14 Can. Cr. Gas. 161.

Trial hy Police Magistrate. — A police magistrate in Ontario has
jurisdiction with the consent of the accused to try the- offence of
perjury. R. v. Bums (No. 2) (1901), 4 Can. Cr. Cas. 330 (Ont.) ;
and by sub-sec. (2) of sec. 777, police magistrates of cities and in-
corporated towns in every other part of Canada have the like juris-
diction.

Perjury in Pending Civil Action. — ^Where a charge of perjury
is brought on for trial during the pendency of the civil action in which
it is alleged to have been committed and where the question of fact
on which the perjury is alleged is the same as that involved in the civil
action, the Criminal Court should exercise its discretion to postpone
the criminal trial until after judgment in the civil action. The Kiag
V. Cohon, 6 Can. Cr. Cas. 386.

A person charged with perjury committed in a civil action is en-
titled to have put in evidence those parts of his testimony in the civil
action which may explain or qualify the statements in respect of which
the perjury is charged. R. v. Coote (1903), 8 Can. Cr. Cas. 199, 10
B.C.R. 285.

But the non-production by the prosecution, on a trial for perjury,
of the plea which was filed in the civil suit wherein the defendant
is alleged to have given false testimony, is not material when, the as-
signment of perjury has no reference to the pleading, but the defen-
dant may, if he wishes, in case the plea is not produced, prove
its contents by secondary evidence. R. v. Ross, 1 Montreal L.R.
(Q.B.) 227, 28 L.C.J. 261.

The permission granted by the Canada Evidence Act to certain
officials to "receive" the solemn declarations of persons voluntarily
making the same in the statutory form includes an authorization to
the declarant to make the same, and constitutes him a person "auth-

CHAP. I.] Perjury in Civil Actions. 5S6g

orized by law to make a solemn declaration." R. v. Skelton (1898),
4 Can. Cr. Cas. 467 (N.W.T.).

Section 176 does not refer to solemn declarations under the Canada
Evidence Act but merely to statements and declarations; the former
are covered by sec. 175. It is only in certain cases that statements
and declarations other than solemn declarations are specially auth-
orized, and sec. 176 appears to be applicable only to such cases. Ibid.

Section 1002 of the Criminal Code 1906, which requires corrobora-
tion in certain cases, and specially includes the offence of perjury
under Code sec. 174, does not apply to the analogous offence of making
a false statutory declaration under see. 175.

A person is "authorized by law" to make a statutory declaration
if the declaration is such as can legally be made under the Canada
Evidence Act.

On a charge of making a false statutory declaration, it must be
shewn that when the declaration was made the officer receiving the
same or the declarant made use of words to the effect that the declara-
tion was in the nature of an oath.

Where a form of statutory declaration was made up by a magis-
trate from information given by the accused, and after the latter 's
signature had been obtained the magistrate addressed the accused
with the words : "Do you declare it is true ? " to which the accused
replied, "I do," the declaration has not been legally made in the
terms of the Canada Evidence Act and a conviction is not authorized
under Code see. 175, although the allegations in the document are
shewn to be wilfully false. Rex v. Phillips, 14 Can. Cr. Cas. 239.

(537 )

CHAPTER THE SECOND.

OF IMPUGNING OBSTRUCTING DEFEATING AND PERVERTING THE
ADMINISTRATION OF JUSTICE.

Sect. I. — Of Contempt op Court and Attacks on the Action of

Judges and Juries.

Contempts against the superior Courts or their judges (a), and scandalous
reflections upon their proceedings (6), (' scandalising the court ') (c),
have always been considered criminal ; and one of the earliest cases
of criminal prosecution for libel appears to have been an indictment for an
offence of this kind (d).

Generally, any contemptuous or contumacious words spoken to the
judges of any Court in the execution of their offices are indictable ;
and when disparaging words are spoken of the judges of the superior
Courts, the speaker is indictable at common law, whether the words
relate to their office or not (e). But where the aspersions on the judge
do not relate to his judicial conduct, it is now usual to leave him to his
ordinary remedies for defamation ( /). Attempts to intimidate or unduly
influence a judge appear to be indictable misdemeanors (g). Public
attacks on Courts of justice have in some instances been treated as a form
of sedition (h).

It is now accepted law that it is a misdemeanor to publish invectives
or improper attacks on judges or juries, reflecting upon and calumniating
their action in the administration of justice (i).

An order made by a corporation, and entered in their books, stating
that A. (against whom a jury had found a verdict with large damages

(a) Vin. Abr. tit. ' Contempt ' (A. ) 44. statutes fell into disuse and were repealed

Pool V. Saoheverel [1720], 1 P. Wms. 675 ; in 1887 (50 & 51 Vict. u. 59).

24 E. B. 565. [f] See Maoleod v. St. Aubyn [1899], A.C.

(6) R. V. Gray [1900], 2 Q.B. 36, where 549.

the editor of a newspaper was summarily {[i) See Lord Macclesfield's case, 16 St.

punished for a scurrilous attack on a judge, Tr. 767. R. v. Gurney, 10 Cox, 550. And

in respect of his conduct during a trial as to bribery, post, p. 627.

recently concluded. Cf. R. v. Almon, 5 [h) O'ConneU, v. R. 5 St. Tr. (N. S.) 1.

Burr. 2686 ; Wilmot's Opinions, 243. R. v. Gordon, 22 St. Tr. 177 (imputing cor-

471. (N. S.) 1149. 9 C. & P. 456. But ' there is

{d) Holt on Libel, 153. no sedition in just criticism on the admini-

(e) 2 Starkie on Libel, 195. Odgers on stration of the law.' R. v. Sullivan, 11

Libel (4th ed.), 493 et seq. And see 1 Hawk. Cox, 50, Fitzgerald, J.

.;. 7 et seq. The proceeding by writ of (i) See R. v. Gray [1900], 2 Q.B. 36.

scandalum magnatum upon the statutes R. v. Almon, 5 Burr. 2686. Wilmot's

3 Edw. I. c. 34 ; 2 Rich. II. st. 1, c. 5 ; Opinions, 243. Macleod v. St. Aubyn

12 Rich. II. c. 11, was of a civil, as well as [1899], A.C. 549, 550. R. v. MoHugh

of a criminal nature ; and was formerly [1901], 2 Ir. Rep. 569. B. v. Hart and

had recourse to in case of defamation of White, 30 St. Tr. 1131, 1189.
any of the great officers and nobles. The

538 Of Offences against the Administration of Justice, [book vii.

in an action for a malicious prosecution, and which verdict had been con-
firmed in the Court of Common Pleas), was actuated by motives of public
justice in preferring the indictment, was held to be a libel reflecting on the
administration of justice, for which an information should be granted
against the members who had made the order. Ashhurst, J., said, that the
assertion that A. was actuated by motives of public justice carried
with it an imputation on the public justice of the country ; for if those
were his only motives, then the verdict must be wrong. BuUer, J., said :
' Nothing can be of greater importance to the welfare of the public than
to put a stop to the animadversions and censures which are so frequently
made on Courts of justice in this country. They can be of no service,
and may be attended with the most mischievous consequences. Cases
may happen in which the judge and jury may be mistaken : when they are,
the law has afforded a remedy ; and the party injured is entitled to pursue
every method which the law allows to correct the mistake. But when a
person has recourse either by a writing like the present, by publications in
print, or by any other means, to calumniate the proceedings of a Court of
justice, the obvious tendency of it is to weaken the administration of
justice, and in consequence to sap the very foundation of the constitution
itself ' ij).

In E. V. White {k) an information had been filed against the proprie-
tors and printers of a Sunday newspaper for a libel upon Le Blanc, J.,
and a jury, by whom a prisoner had been tried for murder and acquitted.
It was contended on the part of the defendants that they had only made a
fair use of their right to comment on the proceedings of a Court of justice.
Grose, J., said that ' it certainly was lawful, with decency and candour,
to discuss the propriety of the verdict of a jury, or the decisions of a judge ;
and if the defendants should be thought to have done no more in this
instance, they would be entitled to an acquittal : but, on the contrary,
they had transgressed the law, and ought to be convicted, if the extracts
from the newspaper, set out in the information, contained no reasoning or
discussion, but only the declamation and invective, and were written not
with a view to elucidate the truth, but to injure the characters of indi-
viduals, and to bring into hatred and contempt the administration
of justice in the country.'

This doctrine is now fully accepted, and ' when a trial has taken place
and the case is over, the judge or jury are given over to criticism ' {I) ;
but this liberty does not license personal scurrilous abuse of the judge as
a judge {m).

Offences within this section, if committed with reference to judges
of a superior Court, may be dealt with as for contempt of Court («).

The rule as to the criminality of attacks or aspersions on a judge in
his judicial capacity was originally applied only to the King's judges of
the superior Courts. This expression includes the House of Lords, the

(?) R. V. Watson, 2 T. R. 199. Fitzgerald, J.

(k) 1 Camp. 359 n. And see a note of (m) R. v. Gray [1900], 2 Q.B. 36, 40,

another proceeding by information against Russell, L.C.J.

the same defendants for a libel on EUen- (m) R. v. Gray, uhi sup. Martin's case,

borough, C.J. Holt on Libel, 170, 171. 2 Russ. & My. 374. Ex parte Jones, 13

(0 Maoleod v. St. Aubyn [18991, A.C. Ves. 237. Be Sombre, 1 Macn. & G. 116.
f)49, 561. R. V. Sullivan, 11 Cox, 50 (Ir.),

CHAP. II.] Of Contempt of Court. 539

Judicial Committee of the Privy Council, the Courts of Appeal Civil and
Criminal, and every branch and judge of the High Court of Justice in
England and Ireland (o) and superior colonial Courts of record (p). The
rule has been extended to justices of the peace and judges of inferior
Courts while acting in the execution of their office. In such cases the
remedy is not by summary proceedings for contempt, but by indictment
or criminal information {q).

An indictment does not lie for contemptuous words spoken either
of or to inferior magistrates, unless they are at the time in the actual
execution of their duty, or at least unless the words affect them directly
in their office though it may be good cause for binding the offender to
his good behaviour (r). Where the defendant was indicted for saying
of a justice of the peace for the county of Middlesex, in his absence, that
he was a scoundrel and a liar (s), Ellenborough, C.J., said : ' The words
not being spoken to the justice, I think they are not indictable. This
doctrine is laid down by Holt in a case in Salkeld {t) ; and in E. v. Pocock (m)
the Court of Queen's Bench refused to grant an information for saying of a
justice, in his absence, that he was a, forsworn rogue. However, I will not
direct an acquital upon this point, as it is upon the record, and may be
taken advantage of in arrest of judgment. It will be for the jury now to
say whether these words were spoken of the prosecutor as a justice of the
peace, and with intent to defame him in that capacity ; for if they were
not, this indictment is not supported ; and it could not by possibility
be a misdemeanor to utter them, although the prosecutor's name may
be in the commission of the peace for the county of Middlesex ' {v). But
it has been held to be an indictable offence to say of a justice of the peace,
when in. the execution of his office, ' you are a rogue and a liar " (w). The
Court will not, however, grant an information for calling a magistrate
a liar, accusing him of misconduct in having absented himself from an
election of clerk to the magistrates, and threatening a repetition of the
same language whenever such magistrate came into the town, unless
they tend to a breach of the peace {x).

Offences of this kind, though in theory indictable, are dealt with
summarily by the High Court when directed against any of its
divisions (y), and may be dealt with summarily by an inferior Court of
record if committed in facie curice. The proceeding in the High Court
is by attachment or committal (2). The remedy by indictment is rarely
used, owing to the inevitable delay and consequent risk of interference
with justice {a).

(o) See Odgers on Libel {4th ed.), 495. (w) R. v. Revel, 1 Str. 420.

Ex parte Fernandez, 30 L. J. C. P. 321. {x) Ex parte Chapman, 4 A. & R. 773.

(p) Be McDermott, L. R. 1 P. C. 260 ; Ex parte Duke of Marlborough, 5 Q.B. 935.

2 P. C. 341. iy) Including courts created by eommis-

(5) R. V. Rea, 17 Ir. C. L. R. 584, impu- sions of assize, gaol delivery, or oyer and

tation on a resident magistrate. terminer. R. v. Parke [1903], 2 K.B. 432.

(r) See Odgers on Libel (4th ed.), 496, Cf. R. v. Payne [1906], 1 K.B. 577.

497. 1 Hawk. c. 21, s. 13. 2 Starkie on (z) Onslow and Whalley's case, L. R.

Libel, 195. 9 Q.B. 219. R. v. Gray [1900], 2 Q.B. 36.

(s)'r. v. Weltje, 2 Camp. 142. See Short & Mellor, Cr. Pr. (2nd ed.), 342.

(t) R. v. Wrightson, 2 Salk. 698. Oswald on Contempts (2nd ed.).

iu) 2 Str. 1157. And see R. v. Penny, (a) See R. v. Tibbits [1902], 1 K.B. 77.

1 Ld. Raym. 153. R- "• Parke [1903], 2 K.B. 432.

(») R. V, Weltje, 2 Camp. 142,

540 Of Offences against the Administration of Justice, [book vii.

Sect. II. — Of Acts Affecting Faie Trial of Pending Cases.

Any publication, exhibition, or representation intended or calculated
to interfere with the fair trial of a legal proceeding pending in any Court of
justice, is a misdemeanor at common law (b). The incriminated publica-
tion or exhibition may be described as attempts to pervert the course of
justice, or as calculated to produce that effect (c).

This rule has been held to apply to a theatrical representation
which represented a man in the act of committing an offence for which
he was awaiting trial (d).

So has the circulation by the defendant to an information immediately
before its trial, and in the town where the trial was to be held of a
vindication of his conduct and an attack on that of the prosecutor (e).
and the publication of proceedings before a coroner with comments
before the completion of the inquiry (/) ; and the publication of newspaper
articles containing statements affecting the character or conduct of persons
under accusation of crime, whatever the stage which the proceedings
have reached, i.e. whether during a preliminary inquiry before justices,
or after committal, or during trial or indictment (g). In R. v. Tibbits
and Windust (h) the editor and reporter of a weekly paper were indicted
and held to have been rightly convicted of publishing articles by a
' Special Crime Investigator ' containing a number of statements highly
detrimental of two persons under an accusation of attempted murder.
Of the statements some were published during the preUminary inquiry,
some between committal and trial, and some during the actual trial
at the assizes. "Where the publication relates to a case which is
actually only pending before justices of the peace, but in the due
course of justice may go for trial before any branch of the High Court,
including a Court of assize (i), or the Central Criminal Court (j), the
offence may be dealt with by the High Court summarily by attachment
for contempt, whether the publication is by an individual or by a cor-
poration (k). The offence is committed if the publication is calculated
to interfere with a fair trial, should the result of the preliminary inquiry
be the committal of the prisoner for trial (I). It would seem that even
where the trial will take place at Quarter Sessions or in any inferior Court,

(b) R. V. Tibbits [1902], 1 K.B. 77. (i) R. v. Davies [1906], 1 K.B. 32. In

(c) Vide ante, p. 142. See the in- this case a woman was in custody on a
diotment in R. v. Tibbits [1902], 1 K.B. charge of abandoning a child. A news-
77, where the indictment included charges paper published reports as to her antece-
of (1) attempting to prejudice the mind of dents, suggesting that she had been a
the examining magistrate, and so to ob- wholesale child farmer.

struct and pervert justice ; (2) knowingly (?) R. v. Parke [1903], 2 K.B. 432, 439,

doing acts calculated to obstruct and per- Wills, J. In this case former rulings are

vert justice ; (3) devising and intending to collected. The publication complained of

injure A. and B. and to deprive them of a consisted in statements about a man ac-

fair trial ; (4) conspiracy to obstruct and cused of forgery, and subsequently com-

pervert justice. Vide ante, p. 163. mitted for trial on charges of forgery and

(d) R.t;.Wimams,2L. J. (0. S.) K.B. 30. murder. Of. R. v. Payne [1906], 1 K.B.

(e) R. V. JolUffe, 4 T. R. 285. 577.

(f) R. D. Fleet, 1 B. & Aid. 379: 19 (k) R. v. 'Freeman's Journal' [1902],
R. R. 344. 2 Ir. Rep. 82.

(g) R. V. Tibbits [1902], 1 K.B. 77. (I) R. v. Davies [1906], 1 K.B. 32-35,
{h) Vii sup. WiUs, J.

CHAP. II.] Of Interference with Witnesses. Ml

the High Court may intervene hrevi manu to punish pubHcations cal-
culated to prejudice such trial (m).

Sect. III. — Op Interference with Witnesses.

It is an ofEence at common law to use threats or persuasion to witnesses
to induce them not to appear or give evidence in courts of justice, even
if the threats or persuasion fail (n). The ofEence is a misdemeanor
punishable by fine and (or) imprisonment without hard labour, on
indictment or information ; or, if committed with reference to a case in a
superior Court of record, by summary proceedings for contempt (o).

As to conspiracies to do any of these acts, see ante, p. 163. In E. v.
Eoderick and Clare (p) a conviction was obtained on an indictment for con-
spiracy to defeat the ends of justice by preventing a girl under sixteen
from attending the assizes to give evidence against a man charged with a
criminal ofEence against her.

There is no precedent of proceedings at common law for discharging
or damnifying witnesses because of evidence given by them. But in the
case of Parliamentary inquiries, witnesses are protected by the Witnesses
Protection Act, 1892 (55 & 56 Vict. c. 64), sect. 1. 'In this Act the word
" inquiry " shall mean any inquiry held under the authority of any Royal
Commission or by any committee of either House of Parliament, or
pursuant to any statutory authority, whether the evidence at such inquiry
is or is not given on oath, but shall not include any inquiry by any Court
of justice.'

By sect. 2, ' Every person who commits any of the following acts,
that is to say, who threatens, or in any way punishes, damnifies, or
injures, or attempts to punish, damnify, or injure any person for having'
given evidence upon any inquiry, or on account of the evidence which
he has given upon any such inquiry, shall, unless such evidence was
given in bad faith, be guilty of a misdemeanor, and be liable upon con-
viction thereof to a maximum penalty of one hundred pounds, or to a
maximum imprisonment of three months.'

By sect. 3, ' A prosecution for any ofEence under this Act may be
heard and determined by a court of summary jurisdiction under the
Summary Jurisdiction Acts, provided that should either the com-
plainant or the party charged object to the case being dealt with
summarily, the Court shall send such cases for trial to the quarter
sessions or assizes, or in cases arising within the metropolitan area to
the Central Criminal Court.'

(m) Ibid. p. 37, 39, citing 2 Hawk. o. 2, see indictments for dissuading a witness

s. 3. See Short & Mellor, Crown Practice from giving evidence against a person in-

(2nd ed.), 345. This jurisdiction is traced dieted, 2 Chit. Cr. L. 235 ; Arohb. Or. PI.

to the authority of the Court of King's (23rd ed. ) 1078 ; and an indictment for a

Bench as custos morum, assumed on the conspiracy to prevent a witness from giving

extinction of the Court of Star Chamber. evidence, R. v. Steventon, 2 East, 362.

(n) I Hawk. c. 21, s. 15. 2 Chit. Cr. L. And see R. v. Edwards, ante, p. 527.

220, 235. R. V. Lawley, 2 Str. 904. R. v. (o) R. v. HaU, 2 W. Bl. 1110. Onslow

Steventon, 2 East, 362. R. v. Loughran, and Whalley's cases, L. R. 9 Q.B. 219.

1 Or. & D. (Ir.) 79. R. v. Talley [1875], (p) Swansea Summer Assizes, 4 Aug.,

82 Cent. Or. Ot. Sess. Pap. 518. See also 1906, Jelf, J. The girl had been induced

R. V. Gray [1903], 22 N. Z. L. R. 52. And to go to the United States.

542 Of Offences against the Administration of Justice. [BOOK VW.

By sect. 4, ' It shall be lawful for any Court before which any person
may be convicted of any offence under this Act, if it thinks fit, in addition
to sentence or punishment by way of fine or imprisonment, to condemn
such person to pay the whole or any part of the costs and expenses incurred
in and about the prosecution and conviction for the offence of which he
shall be convicted, and, upon the application of the complainant, and
immediately after such conviction, to award to complainant any sum of
money which it may think reasonable, having regard to all the circum-
stances of the case, by way of satisfaction or compensation for any loss
of situation, wages, status, or other damnification or injury suffered by the
complainant through or by means of the offence of which such person shall
be so convicted, provided that where the case is tried before a jury, such
jury shall determine what amount, if any, is to be paid by way of satis-
faction or compensation.'

By sect. 5, ' The amount awarded for such satisfaction or compensa-
tion, together with such costs, to be taxed by the proper officer of the
Court, shall be deemed a judgment debt due to the person entitled
to receive the same from the person so convicted, and be recoverable
accordingly.'

Sect. IV. — Op disobeying Judicial Ordees.
A. General.

Wilful disobedience to the order of a competent Court is in certain
cases punishable on indictment or summarily by fine and (or) imprison-
ment without hard labour. Disobedience by officers of the Court or
executive ofiicers to judicial orders will be dealt with under ofiicial
misconduct {fost, Book VIIL, Chapter I.).

Disobedience by witnesses or parties to lawful orders of a superior
Court of record may be dealt with by the Court summarily by committal
or attachment for contempt of Court [q). Where the order is to pay money
the jurisdiction to imprison for disobedience is limited by the Debtors
Acts, 1869 and 1878 (r). The power is oftenest exercised with reference
to persons who disobey injunctions, or who, knowing that an injunction
has been made against another, aid and abet him in disobeying it (s).
A distinction is drawn for purposes of appeal between disobedience to
orders of the Court made to enforce a civil right, and those forms of
contempt which are regarded as purely criminal, e.g., outside interference
with the course of justice (t). Such offences can, it would seem, also be
dealt with by indictment (m). There are few if any precedents of an indict-
ment for disobeying the orders of a superior Court of record. It is said
that where the treasurer of a county refuses to comply with an order
for payment of the costs of prosecuting an indictment, the remedy is by

(q) As to the procedure, see R. S. C. (s) Seward v. Paterson [18971, 1 Ch. 545

1883, 0. 44. Ann Pr. 1909, p. 629. (t) Att.-Gen. v. Kissane, 32 L. R. Ir. 320.

(r) See Ann Pr. 1909, p. 586. Murch v. O'Shea v. O'Shea, 15 P. D. 62.
Loosemore [1906], 1 Ch. 692. Under the (u) R. v. Robinson, 2 Burr. 799, 804.

Acts of 1869 and 1878, imprisonment for This relates to an order of Quarter

non-payment of money may not exceed one Sessions. Cf. R. v. Mortlook, 7 Q.B. 459.

year. 32 & 33 Vict. o. 02, s. 5 (proviso). R. v. Brisby, 1 Den. 416.

CHAP II.] Of Disobedience to Orders of Justices. 543

indictment («). Disobedience to a writ of subpoena, to attend as a witness
or produce documents, is enforceable by attachment, if the writ issues
out of a superior Court, and apparently by indictment, if the writ issues
from a Court of Quarter Sessions (w).

B. Disobedience of Orders made by Justices of the Peace.

Disobedience to an order of justices of the peace made in due exercise
of their powers is a misdemeanor indictable at common law (x). It is
immaterial whether the order of justices is made at general or quarter
sessions (y), or at petty sessions (2), or out of sessions (a)^ provided that it
is one which the justice or justices has jurisdiction to make, and that
there is no prescribed and adequate remedy other than indictment for
disobedience (b). Foster, J., thus stated the rule : ' In all cases where a
justice has power given him to make an order, and direct it to an inferior
ministerial officer, and he disobeys it, if there be no particular remedy
prescribed, it is indictable ' (c). Thus, a party has been held guilty of an
indictable ofEence, in disobeying an order of sessions for the maintenance
of his grandchildren {d). In this case it was contended that, as the Poor
Law Act, 1601 (43 Eliz. c. 2), s. 7, had annexed a specific penalty, and a
particular mode of proceeding, the course prescribed by the Act ought
to have been adopted, and that there could be no proceeding by indict-
ment : but it was held that the prosecutor was at liberty to proceed
either at common law, or in the method prescribed by the statute ; and
that an indictment would lie at common law for disobedience to an order
of sessions (e). And power to remove a pauper being given to two justices
by 14 Car. II. c. 12, the not receiving him was held to be a disobedience
of that statute for \yhich an indictment would lie (/).

Where an order of justices is a nullity on the face of it, another order
may be made, and an indictment will lie for disobeying the second order (g) .

Where an order is made by justices, any person mentioned in it, and
required to act under it, must, upon its being duly served upon him,
lend his aid to carry it into effect. Thus where, upon a complaint made

{v) R. V. Jeyes, 3 A. & E. 416, 422. The v. Boyall, 2 Burr. 832, 834, Lord Mansfield

order was made by a Court of Quarter Ses- said : ' I do not approve of indicting where

sions. Cf. R. V. Jones, 2 Mood. 171. The there is another remedy: it carries the

remedy by mandamus has been applied in appearance of oppression.'

such cases. R. v. Treasurer of Oswestry, (c) Bum's Justice, tit. ' Poor,' s. xvii. 2,

12 Q.B. 239. i. A mandamus to the inferior officer will

(«') R. u. Brownell, 1 A. & E. 598. Cf. not be granted, but the procedure must be

R. V. Ring, 8 T. R. 585. by indictment. R. v Bristow [1795], 6

(x) R. V. Robinson [1759], 2 Burr. 799. T. R. 168.

(y) Id. ibid. See R. v. Bill, an order of (d) R. v. Robinson, 2 Burr, 799.

sessions on churchwardens and overseers (e) Id. ibid,

to account for and pay over money in their (/ ) R. v. Davis, ubi sup.

hands (2 Burr. 805, cit.), and R. v. Boys, {g) R. v. Brisby, 1 Den. 416. R. v.

an order of sessions to pay costs of an ap- Marohant, 1 Cox, 203. R. v. Cant, 2 Mood,

peal against a poor rate. Ibid. 521. In R. v. Ferrall, 2 Den. 51, the ques-

(2) R. V. Davis, 2 Burr. 805, cit. 1 Say. tion was whether, under a clause in the

163 ; 1 Bott. 361, pi. 378. Annual Mutiny Act, a soldier was freed

(a) See R. v. Balme, 2 Cowp. 650. R. from an indictment for disobeying a bas-

V. Feamley, 1 T. R. 316 ; 2 Chit. Cr. L. tardy order ; and the Court held that he

279. was not, as it was a ' criminal matter.'

(6) R. V. Robinson, 2 Burr. 799, 803, See now 44 & 45 Vict. c. 58, ss. 138, 145.
Lord Mansfield. Vide ante, p. 13. In B.

544 Of Offences against the Administration of Justice, [book vii.

by an excluded member of a friendly society, two persons, A. and B.,
the then stewards of the society, were summoned, and an order made
by two justices that such stewards and the other members of the society
should forthwith reinstate the complainant ; it was held that though this
order was not served upon A. and B. until they had ceased to be stewards,
yet it was still obligatory upon them, as members of the society, to
attempt to reinstate the complainant ; and that their having ceased
to be stewards was no justification of entire neglect on their part [h).
EUenborough, C.J., said at the trial : ' The order is not confined to the
stewards alone, but is made upon all the members of the society ; and the
defendants were members of the society independently of their being
stewards, and were bound, as members, to see that the order was obeyed ;
or, at least, to have taken some steps for that purpose. As members, they
might have done something ; as stewards, indeed, they might, with
greater facility, have enforced obedience to the order ; but each member
had it in his power to lend some aid for the attainment of that object.'
And on a motion to enter the verdict for the defendants, on the ground
that, having ceased to be stewards when the notice was served, they
had not been guilty of a criminal default ; the Court said, that if the
defendants had shown that they did everything in their power to restore
the party, in obedience to the order, they might have given it in evidence
by way of excuse {i).

As a general rule there must be personal service of an order on all
persons who are to be proceeded against for disobeying it, and the indict-
ment should so state: and it has been held a fatal objection to an indict-
ment for disobedience and contempt of an order of sessions, that it
charged a contempt by six persons of an order, which was only stated
to have been served on four of them {j).

The entire order of a Court to pay the expenses of a prosecution,
under sect. 26 of the Criminal Law Act, 1826 (7 Geo. IV. c. 64), must be
served on the treasurer of the county. Where, an order was made to
pay an aggregate sum, the details of which were annexed, and the attorney
tore off the details, and served the order for the payment of the aggregate
sum alone on the treasurer ; it was held, on a case reserved, that he was
not indictable for refusing to obey the order {k).

An indictment for disobeying an order of justices must show explicitly
that the order was made ; and it is not sufficient to state the order by way
of recital {I). It is said to be safer to aver that the defendantwas requested
to comply with the terms of the order (m).

(A) R. V. Gash, 1 Stark. (N. P.) 41. The diction. See R. v. Wade, 1 B. & Ad. 861.

Acts relating to friendly societies are con- (j) R. v. Kingston, 8 East, 41. R. v.

solidated by 59 & 60 Vict. cc. 25, 26. GiUses, 3 C. & P. 52.

(i) Id. ibid. The motion was also made (k) R. v. Jones, 2 Mood. 171. This

on another ground ; namely, a defect in the enactment is repealed and replaced by

jurisdiction of the magistrates : two magis- 8 Edw. VII. o. 15, s. 4 (2), post, Bk. xii. c.v.

trates of the county of Middlesex, where the (I) R. v. Crowhurst, 2 Ld. Raym. 1363.

meetings of the society were held, having (m) 2 Chit. Cr. L. 279, note (g), citing R.

made the order, though the society had v. Fearnley, 1 T. R. 316, where an objection

been originally established in the city of was taken to an indictment that it did not

London, and its rules enrolled at the ses- contain such statement ; but the Court did

sions for that city. But the Court decided not find it necessary to give any opinion

that the magistrates of Middlesex had juris- upon the point.

CHAP II.] Of Disobedience to Orders of Justices. 545

If the indictment omits to state the service of the order the want of
such allegation will not be supplied by an averment that the defendant was
requested to perform the duties required by the order (w). It seems
not to be a matter for the prosecution to aver, but one for the defence
to prove that the order has not been revoked (o).

An indictment for refusing to obey an order of justices to pay a
church-rate, alleged that the rate ' was duly made as by law in that
behalf required, and that the same was afterwards duly allowed as by
law in that behalf required,' and that ' the defendant was duly rated '
in and by the said rate at the sum of sixteen shillings. It was objected
that the facts ought to have been stated which constituted a due making
and allowance of the rate and a due rating of the defendant. But it
was held (1), that these introductory facts were alleged only to shew
that the justices had jurisdiction to make the order, and therefore they
fell within the description of inducement, in which such a general allega-
tion was allowed ; (2) that the rest of the count shewed that the justices
had sufficient authority to make the order, as there was a sufficient
information by competent persons to give them jurisdiction (p). The
same indictment stated that a church-rate had been duly demanded of
the defendant, and that he had refused and neglected to pay the rate to
W. A. and J. C, who then were the churchwardens ; and it was held that,
though it did not state that they were churchwardens when the rate was
demanded, it was sufficient that they were shewn to be so at the time of
neglect and refusal to pay the rate, for that was the offence {q). The
same indictment alleged that a justice made his warrant (summons),
whereby, ' after reciting as therein recited,' he summoned the defendant,
and the indictment did not state to whom the warrant was directed. It
was held that it was sufficient, for enough of the warrant was stated
without mentioning the recital, and it was sufficiently averred that it was
directed to the defendant {q). The same indictment averred that a sum-
mons was issued on May 30, to appear on June 6, then next, and was
' before the said 6th day of June, to wit, on the 30th of May ' personally
served on the defendant, who did not appear in pursuance of it ; and it
was held that it must be assumed that the justices satisfied themselves
that it had been served a reasonable time before the day of appearance,
otherwise they would have acted unjustly in making the order in the
absence of the defendant, and the intendment is always favourable to
the validity of an order (r). On the same indictment it was also held
that it is not necessary to set out the order according to the tenor ; it is
enough to set out the substance of it correctly (s). The same indictment
did not aver the church-rate to have been in force when the order to pay
it was made, but it was held that, as it averred that the rate continued
in force at the time of the indictment, it was quite sufficient {t). It was
also held that the indictment need not allege the date of the order (m),
as that was immaterial.

(n) R. V. Kingston, 8 East, 41, 53. Church rates are not now compulsory (31

(o) B. V. Holland, 5 T. R. 607, 624, & 32 Vict. c. 109).
where the defendant was indicted for mal- (g) Ibid. (r) Ibid,

versation in office as one of the council at (a) Ibid. (t) Ibid.

Madras. («) Ibid.

(p) B. V. Bidwell, 1 Den. 222, Parke, B.

VOL. I. 2 N

546 Of Offences against the Administration of Justice, [book vii.

An indictment alleged that an appeal was made by the defendants
against a rate to the sessions, who dismissed the appeal, and ordered
the defendants ' immediately upon service of the said order, or a
true copy thereof,' to pay the churchwardens and overseers a sum for
costs of the appeal, and that a true copy of the said order was afterwards
personally served upon each of the defendants, and each of them had notice
of the said order. Nevertheless, the defendants wUfully neglected and
refused to pay. Upon the trial the clerk of the peace produced the
minutes of the sessions, and read the order, which ordered the defendants
' immediately upon service of this order, or a true copy thereof,' to pay
the costs. The clerk of the peace stated that ' the costs were not taxed
during the actual sitting of the sessions, but between the time of the
Court adjourning and its meeting. I reported to the magistrates what I
thought fit and proper costs ; and the Court adopted it. I made a verbal
statement, which the Court adopted. I gave both parties an opportunity
of attending. The defendants did not attend. I wrote a letter to their
solicitor. The appeal was dismissed for want of due notice.' The
defendants' attorney was the person attending the appeal, and was
present when the order was made. There were four or five of the magis-
trates at the adjournment who were at the original sessions. A witness
proved that he served each defendant with a paper, which he told them
was a true copy of the order, as in fact it was, and at the time of service
read to each the contents of a parchment writing, which was also a true
copy of the order, and was produced on the trial. It was objected, first,
that as notice to produce the copies served had not been given, evidence
could not be given that the copy served was a true copy ; but it was
held that a notice to produce the paper served would have been notice
to produce a notice, which is never required ; secondly, that an order to
pay ' upon service of the said order, or a true copy thereof,' was bad on
the face of it ; but it was held to be perfectly suf&cient, — that an order of
sessions in that form was good, And the service was also good, whether
the book of the sessions or the parchment was the order ; for if the book
was the original, it could not be shewn at the time of the service, and if
the parchment was the original, its contents were read over {v). And,
lastly, that the adjourned sessions had no jurisdiction to fix the amount
of costs (w). The Court held that the justices must be taken to have
ordered in the first instance, in the presence of all the parties, that the
defendants should pay such costs as the officer might find to be due ;
and the result of the evidence being that both parties had an opportunity
of attending the taxation, and no objection being made when the amount
was stated in Court, a state of things took place which amounted to a
consent, and therefore the order was valid {x).

The Distress for Eent Act, 1737 (11 Geo. II. c. 19), s. 16 {y), enables

two justices to put a landlord in possession of premises in any case where

one half-year's (z) rent is in arrear, and the tenant deserts the premises and

(v) Coleridge, J., said : ' An order of the taxed during the sessions, unless the parties

quarter sessions is not like an order of jus- consent to taxation out of sessions. Mid-

tices out of sessions. It is the judgment of land Rail. Co. v. Edmonton Union [1895],

the Court, and that cannot be carried A. C. 495.

3.bout : it is sufficient if a copy be shewn.' (x) R. v. Mortlock, 7 Q.B. 459.

i (w) This point was not then decided ; {y) As amended by 57 Geo. III. o. 52, s. 1.

but it is npw §ett}ed that costs must be (z) The rent must be a rack rent or full

CHAP. II.] Of Disobedience to Orders of Justices. 547

leaves them uncultivated or unoccupied so as no sufficient distress can
be had ; and sect. 17 empowers the next justice or justices of assize, on the
appeal of the tenant, to award restitution to the tenant. Upon an indict-
ment for disobeying the order of the justices of assize to restore possession
to the tenant, it is not necessary to prove the proceedings before the magis-
trates preliminary to the restitution ; and that it is sufficient to put in
the record made up by the justices of the peace, in which, after reciting
the complaint and other proceedings, they declare that they put
the landlord into possession ; and it is unneoesssary to prove the complaint
of the landlord (a).

Upon the trial of an indictment for not paying a sum of money pur-
suant to an order of sessions made on an appeal by the defendant against
a certificate of two justices, for stopping up, diverting, and turning a
part of a public footway, the record of the order of sessions, together
with proof of the service of a copy of the order upon the defendant, and
a demand of the sum ordered thereby to be paid, to which the defendant
only answered that he did not owe anything, is sufficient evidence to go
to the jury, and it is not necessary to prove aliunde the existence of the
certificate or the fact of the appeal. An order of sessions made upon such
an appeal need not show the time at which the certificate of the justices
was lodged with the clerk of the peace ; for the sessions have no duty
to inquire into that fact, unless the objection is raised before them (&).

On the trial of an indictment against the stewards of a friendly
society for disobeying an order of justices, which recited that the rules
of such society had been enrolled ; it was held that the recital was not
evidence of that fact, which must be proved by other means, in order to
shew that the justices had jurisdiction to make the order under 33 Geo. III.
c. 54, s. 2 (c). Upon the trial of such an indictment, the Court refused
to enter into the merits of the original case, and to hear objections to the
order which did not appear upon the face of it (d). But if it appears
on the face of the order that the justices had no jurisdiction to make it,
the defendant is entitled to acquittal (e).

three-quarters of the value of the demised ment for embezzlement by the secretary of

premises {57 Geo. III. c. 52, s. 1). a friendly society was dismissed for want

(a) R. V. SeweU, 8 Q.B. 161. The very of proof of the registration of the society,

ground of the appeal might be that the jus- The Act of 1793 was repealed in 1855 (18

tices of the peace had acted without any & 19 Vict. c. 63). Friendly societies are

complaint, and therefore the proof of the now governed by two Acts of 1896 (59 &

complaint could not be necessary. The 60 Vict. cc. 25, 26), and certain subsequent

Court held in this case that the order of the statutes making minor amendments. Under

justices of assize must be made by them as modern legislation the rules are submitted

individual justices, and not as a Court, and with an application to register the society,

therefore a certificate of such an order, made to the registrar of friendly societies ;

signed by the deputy clerk of assize in the and an acknowledgment of registration is

same way as an order of the Court, is not conclusive of due registration of the society

sufficient. It seems also that the order unless it is proved that the registry has been

should be signed by the justices of assize, suspended or cancelled (1896, c. 25, s. 11).

and that they alone, and none of the other Oakes v. Turquand, L. R. 2 H. L. 354.

commissioners, have jurisdiction to make Baden FuUer, Friendly Societies (2nd ed.).

such an order. As to form of order, see R. (d) R. v. Mitton, 3 Esp. 200 ; R. v.

■u. Traill, 12 A. & E. 761. ' Gilkes, 3 0. & P. 52, Abbott, C.J.

(6) R. V. Thornton, 2 Cox, 493. (e) R. v. Hoffis, 2 Stark. (N. P.) 536,

V. Kew, Nottingham Assizes, July 15, 1885, These decisions were given while writs of

Pollock, B. Friendly Society Cases, by Dip- error were stiO in use.
rose & Gammon, p. 242, where an indict-

2 N 2

( 548a )

CANADIAN NOTES.

Sec. 1. — Of Contempt of Court and Attacks on the Actions of Judges

and Juries.

Contempt of Court is a criminal proceeding. Ellis v. The Queen,
22 Can. S.C.R. 7 ; Re Scaife, 5 B.C.R. 153. It is therefore necessary
that the charge should be proved with particularity. Re Scaife, 5
B.C.R. 153.

While a criminal information for libel was pending against one
W., H. wrote a letter to a newspaper reflecting upon one of the Judges
who delivered judgment on the application for the information, and *
stating that W. was "as certain to be convicted as a libeller ever was
before his trial." It was held that such letter was clearly contempt
of Court. R. V. Wilkinson, Re Houston (1877), 41 U.C.Q.B. 42.

In New Brunswick the practice has been to issue an attachment
against the person publishing the newspaper comment complained
of, the award of the attachment not being a final judgment but a
method of bringing the party into Court where he may be ordered to
answer interrogations, and by his answers purge his contempt if he
can. If he were unable to then purge his contempt the Court would
then pronounce sentence. Ellis v. Baird, 16 Can. S.C.R. 147.

An appeal does not lie to the Supreme Court of Canada from a
judgment in proceedings for contempt of Court unless it comes within
the provisions of the Supreme Court Act as to appeals in criminal
cases. Ellis v. The Queen, 22 Can. S.C.R. 7; O'Shea.v. O'Shea, L.R.
15 P.D. 59.

Sec. 2. — Of Acts Affecting Fair Trial of Pending Case.

Where the jury disagreed upon the trial of an indictment and a
new jury was ordered "for another sittings the cause is meanwhile
still a pending one and improper and impartial comments thereon
published by one of the accused will constitute a contempt of Court
by him. The Court imposing sentence upon a newspaper proprietor
for a contempt of Court contained in newspaper comment may, in
addition to the infliction of a fine and imprisonment, require the
accused to find securities to keep the peace and to refrain from pub-
lishing further articles reflecting on the pending cause, and may order
imprisonment for six months, or until security is sooner given, or until
the pending cause is sooner ended. The King v. Charlier, 6 Can. Cr.
Gas. 486.

5485 Contempt of Court, Etc. [book vii.

Any publication, whether by parties or strangers, which concerns
a cause pending in Court, and has a tendency to prejudice the public
concerning its merits, and to corrupt the administration of justice, or
which reflects on the tribunal or its proceedings, or on the parties,
the jury, the witnesses or the counsel may be visited as a contempt.
R. V. Wilkinson, Re Houston (1877), 41 U.C.Q.B. 42, citing Bishop
on Criminal Law, 5th ed., vol. 2, sec. 259.

Where the respondent in a controverted election case applied for
an order nisi calling on the defendant, his opponent at the election,
to shew cause why he should not be committed for contempt of Court
for publishing articles in his newspaper reflecting on and pre-judging
the conduct of the respondent and of the returning officer during the
currency of the proceedings on the election petition, it was held, al-
though a prima facie case of contempt had been made out, that as
it appears on the same material that the respondent had attended and
spoken at a meeting held for the purpose of approving of the conduct
of the returning officer and presenting him with a gold watch as a
mark of such public approval, the applicant was also in fault, and
his application was therefore refused. Re Bothwell Election Case, 4
Ont. R. 224.

Where the alleged contempt consisted in the publishing, in a
newspaper, comments on a judgment rendered by a Master in Cham-
bers in a cause in which the writer was solicitor for the defendant, but
.after the proceedings in the cause before the Master were ended, it
was held by the Supreme Court of Canada that the relator in the
cause could not be prejudiced as a suitor by the publication complained
of, and as such prejudice was the only ground on which he could in-
stitute proceedings for contempt he had no locus standi, and his appli-
cation should not have been entertained. Re O'Brien, Regina ex rel.
Felitz V. Howland, 16 Can. S.C.R. 197, reversing 11 Ont. R. 633, and
14 Ont. App. 184.

Sec. 4. — Disobeying Orders of Court. — Code sec. 165.

Disobedience of Orders by Justice of the Peace. — Code sec. 674.

Disobedience of Subpoena. — Code sec. 842.

549

CHAPTEE THE THIRD.

OF OBSTRUCTING OR RESISTING THE EXECUTION OP LEGAL PROCESS.

Sect. I. — Of obstructing Process.

Obstructing the execution of lawful process, whether civil or criminal,
is an offence against public justice ; and it has even been held that the
party opposing an arrest upon criminal process becomes thereby particeps
criminis : that is, an accessory after the fact in felony, and a principal
in high treason (a). Where the process, whether civU or criminal, is that
of a superior Court of record, the obstruction may be dealt with summarily
as contempt of Court (6).

Giving assistance to a felon pursued by officers of justice, in order to
enable him to avoid arrest, is a misdemeanor, as being an obstruction
to the course of public justice (c). An indictment was preferred against
the defendant for rendering assistance to 0. (who had committed forgery
and was being pursued by officers of justice), in order to enable 0. to avoid
arrest. It appeared in evidence that 0. had committed a forgery, as
stated in the indictment ; and had afterwards thrown himself from the
top of a house, by which he was greatly hurt ; and that the defendant,
who was a relation and commiserated his wretched condition, conveyed
him secretly on board a barge to Bristol, and was actively employed
there in endeavouring to enable him to escape from the country.
Advertisements had been printed and circulated, stating the charge
against 0., and offering a large reward for his apprehension ; but it was
not proved that any one of these advertisements had come to the know-
ledge of the defendant or that the defendant was acquainted with the
particular charge against 0., or knew that he had been guilty of forgery,
as alleged in the indictment. Upon this ground the defendant was
acquitted : but no other objection was taken to the indictment.

Privilege. — There is not now any privilege in respect of place (d)
or person against arrest on criminal process (e).

(a) 2 Hawk. c. 17, s. 1, where Hawkins tended privileged places in London and

submits that it is reasonable to understand Southwark, in which fugitives from civil

the books which seem to contradict this and criminal justice claimed freedom from

opinion to intend no more than that it is arrest, on pretence that they had been

not felony in the party himself, who is at- anciently royal palaces. Such were the

tacked in order to be arrested, to save him- White Friars and its environs, the Savoy,

self from the arrest by such resistance : and and the Mint in Southwark. The supposed

see 4 Bl. Com. 128. privilege of such places has been taken

(6) Vide ante, p. 542. away by legislation. See 8 & 9 Will. III.

(c) R. V. Buckle [1821], Gloucester c. 27 ; 9 Geo. I. o. 28 ; 11 Geo. I. u. 22. A
Spring Assizes, Garrow, B. The case similar abuse created by the recognition of
states that ' Olive had committed forgery,' sanctuary was finally suppressed in 1623,
not that he was ' suspected of felony,' as by 21 Jac. I. o. 28.

stated in former editions of this work. (e) Re Freston, 11 Q.B.D. 545. As to

C. S. G. arrest of witnesses, vide post, Bk. xiii. e. v.

(d) At one time there were many pre-

550 Of Offences against the Administration of Justice, [book vii.

Privilege from arrest on civil •process continues in favour of members of
either House of Parliament whUe Parliament is sitting, and in favour of
barristers, solicitors, police and witnesses eundo, morando et redeundo from
a case in -wliicli they are concerned (f), and of ministers of religion, while
officiating in a place of worship or in the burial of the dead, or going to
or from such service (g).

In some proceedings, particularly in those relating to the execution
of the revenue laws (h), the Legislature has made special provision
for the punishment of those who obstruct officers and persons acting
under proper authority. But in ordinary cases, where the offence
committed is less than felony, the obstruction of officers in the appre-
hension of the party is only a misdemeanor, punishable by fine and (or)
imprisonment {i).

An indictment for obstructing the execution of process must state
that the arrest was lawful, i.e., made by proper authority (j).

But where the process is regular, and is executed by the proper officer, it
is not lawful even for a peace officer to obstruct such officer, on the ground
that the execution of it is attended with an affray and disturbance of the
peace ; for if one, having sufficient authority, issues a lawful command,
it is not in the power of any other, having an equal- authority in the same
respect, to issue a contrary command ; as that would be to legalise con-
fusion and disorder (k). Some sheriff's officers having apprehended
a man by virtue of a writ against him, a mob collected, and endeavoured
by violence to rescue the prisoner. In the course of the scuffle, which
was at ten o'clock at night, one of the bailiffs, having been violently
assaulted, struck one of the assailants, a woman, and it was thought for
some time that he had killed her ; whereupon, and before her recovery
was ascertained, the constable was sent for, and invited to arrest the bailiff
who had struck the woman. The bailiffs, on the other hand, gave the
constable notice of their authority, and represented the violence which had
been previously offered to them ; notwithstanding which the constable pro-
ceeded to take them into custody upon a charge of murder, and at first
offered to take care also of their prisoner ; but their prisoner was soon
rescued from them by the surrounding mob. The next morning, the
woman having recovered, the bailiffs were released by the constable.
Upon these facts, Heath, J., was of opinion that the constable and his
assistants were guilty of assault and rescue (I).

By the Sheriffs Act, 1887 (m), 'if a sheriff finds any resistance on the
execution of a writ ' (including any legal process, s. 38), ' he shall take
with him the power of the county (w), and shall go in proper person to do
execution, and may arrest the resisters and commit them to prison, and
every such resister shall be guilty of a misdemeanor.'

(/) See Mather, Sheriff Law, 184. Be (m) 50 & 51 Vict. c. 55, s. 8 (2), which

Gent, 40 Ch. T>. 190. re-enacts 13 Edw. I. c. 39, Stat. West. 2.

(g) See 24 & 25 Viot. c. 100, s. 30. Ante, Thia power is independent of the powers of

p. 407. the sheriff and under-sheriffs to disperse

(h) Ante, Bk. iv. c. iii. pp. 374 et seq. rioters. Ante, Bk. vi. c. i. p. 431.

(i) 2 Chit. Or. L. 145, note (a). (m) Posse comitatus. See 2 Co. Inst. 194.

(;■) R. V. Osmer, 5 East, 304. Dalton, e. 195. Howden v. Standish, 6

(h) 1 East, P. C. 304. C. B. 504. Burdett v. Colman, 14 East, 188.

(I) Anon. [1793], 1 East, P. C. 305. As to calling in the military, see anJe, p. 431.

CHAP. 111.] Of Rescue of Property Lawfully Seized. 551

Where the obstruction of process by the rescue of a party arrested
is accompanied by violence and assault upon the officer, the offence is
indictable ; and rescuing, or attempting to rescue a party arrested on a
criminal charge is usually punished upon indictment (o). The offence of
rescuing a person arrested on mesne process, or in execution after
judgment, subjects the offender to an action in which damages are
recoverable (p). And the Courts have often granted an attachment
against such wrongdoers, it being the highest violence and contempt
that can be offered to the process of the Court (q).

Sect. II. — Eescue of Property Lawfully Seized.
A. Property Distrained.

Distress for Rent. — Eescue of a distress for rent consists in retaking
from the distrainor goods legally (r) distrained and in the possession of
the distrainor by her bailiffs before they have been placed in the custody
of the law by being lawfully impounded (s). It is a misdemeanor at
common law (s), if the retaking is forcible and amounts to a breach of the
public peace (t) ; but a mere trespass without circumstances of violence
is not indictable (u).

A lessee who resists with force a distress for rent or forestalls or
rescues the distress is guUty of forcible detainer (v).

Distress of Animals damage feasant. — ^Where a hayward had distrained
a horse damage feasant on a private enclosed piece of pasture, and it was
rescued from him on the way to the pound, and before it was impounded ;
it was held that this was not indictable, for till the horse got to the pound
the hayward was merely acting as the servant of the owner of the land (w).
If the hayward (who was a manorial officer) had distrained the animal
while straying on a common or in a lane, the animal would have been
in the custody of the law from the moment of seizure and the rescue
indictable (x).

B. Property Impounded.

Pound-breach consists in the wrongful removal, whether with or
without force, of cattle or other personal property from a place in which

(o) Post. p. 567. baiKff goods lawfully seized under a distress

{p) Bao. Abr. tit, ' Kesoue ' (C). Com. for rent, was indictable. An iUegal distress

Dig. tit. ' Rescous ''{D). may be resisted. See R. v. Pigott [18511,

(q) Bac. Abr. ibid. Com. Dig. tit. ' Res- Ir. C. L. R. 471, 478, Perrin, B.

ecus ' (D). In order to ground an attach- (s) 1 Co. Inst. 47. See Cro. Circ. Comp.

ment for a rescue, it seems there must be a (10th ed.) 198 ; 2 Starkie, Cr. PL (2nd ed.)

return of it by the sheriff ; at least, if it 644 ; 2 Chit. Cr. L. 201 — for precedents of

was on an arrest of mesne process. Bac. indictments. Cf. 1 Bishop, Amer. Cr. L.

Abr. ibid. 2 Hawk. u. 22, s. 34. Anon. b. 467 ; 2 Bishop, Amer. Cr. L. s. 111. The

6 Mod. 141. And see, as to the return of usual remedy is by action of trespass at

the rescue by the sheriff, Com. Dig. tit. common law (Rich v. Woolley, 7 Bing.

' Rescous ' (D) 4, (D) 5. Bac. Abr. tit. 651) or under 2 Will. & Mary, o. 5, post,

' Rescue ' (E). R. v. Belt, 2 Salk. 586. R. p. 552.

V. Elkins, 4 Burr. 2129. Anon. 2 Salk. 586. {t) Ante,.-p. 441. Anon. 3 Salk. 187.

R. V. Minify, 1 Str. 642. R. v. Ely, 1 Ld. («) Ante, p. 16.

Raym. 35. Anon. 2 Salk. 586. 1 Ld. {v) Ante, pp. 441 et seq.

Raym. 589. (w) R. v. Bradshaw [1835], 7 C. & P. 233,

(r) R. ■«. Nicholson, 65 J. P. 298, London Coleridge, J. Cf. Green v. Duckett, 11

County Sessions, where McConnell, K.C., Q.B.D. 275.

ruled that rescuing from the custody of a (x) R. v. Bradshaw, uhi sup.

552 Of Offences against the Administration of Justice, [book vli.

they have been lawfully 'impounded,' and thereby placed in the custody
of the law {y), e.g., by placing cattle seized under a distress for rent
in an enclosed field (z).

It has been doubted whether a pound-breach {a) is an indictable
offence, if unaccompanied by a breach of the peace (&). But, on the other
hand, it had been submitted that, as pound-breach is an injury and insult
to public justice, it is indictable as such at common law (c), and the latter
view has been accepted in two recent cases at Quarter Sessions {d).

The Pound-breach Act, 1843 (6 & 7 Vict. c. 30), provides for the sum-
mary conviction of any person who releases cattle distrained on enclosed
land (e).

The civil remedy, however, given by 2 Will. & M. c. 5, s. 4, in most
cases of pound-breach, or rescue of goods distrained for rent, is the best
remedy where the offenders are responsible persons (/). That statute
enacts that, upon pound-breach, or rescous of goods distrained for rent,
the person grieved shall, in a special action on the case, recover treble
damages and costs against the offenders, or against the owner of the goods,
if they come to his use (g).

C. Goods Seized under Legal Process,

It is laid down in the books (h) that if rescues are made upon a distress,
<fec.,for the King, an indictment lies against the rescuer (h). This rule
appears to be applicable to distress levied under the warrant of justices
of the peace. Such goods on lawful seizure are at once in custodia
legis (i). Thus, where a defendant was indicted for rescuing goods
distrained for a church-rate it seems not to have been doubted that such
a rescue was indictable (j).

On an indictment in Ireland for rescuing property distrained for poor-
rate, it was held unnecessary to prove the making of the rate, or that
there was any sum dixe at the time of making the distress ; and that
the warrant to collect, if in the form and with the requisites required
by the Poor Law Act, was sufficient prima facie evidence of the authority
of the collector ; and that the section which required the sum to be collected

(y) I Co. Inst. 47. For precedents of in- see 12 & 13 Vict. c. 92, ss. 5, 6 ; 17 & 18

dictments, see 2 Chit. Cr. L. 204, 206. Vict. c. 60.
Cro. Circ. Comp. (10th ed.) 109. (/) Kemp v. Christmas [1898], 79 L. T.

(z) R. V. Butterfield [1893], 17 Cox, 598. 233 (C. A.).
As to private pounds, see Green v. Duokett, {g) As to the proceedings upon this

11 Q.B.D. 275. statute, see Sullen on Distress (2nd ed.),

(a) In former editions of this work the 171 eisej. 244; Bradby on Distress, &c.,282
Mirror of Justices, u. 2, s. 26, was cited as et seq. Bao. Abr. tit. ' Rescue ' (C). S. 75
authority for saying that pound-breach is a of the Highway Act, 1835 (5 & 6 Will. IV.
greater offence than rescue. The reference c. 50), imposes a penalty on persons break-
is not traceable, and the book is of no ing the pound to rescue cattle, &c., found
authority. See Seidell Society Publ. vol. 7, trespassing on highways,
by Maitland. (h) ¥. N. B. 102-9. Com. Dig. tit,

(6) 2 Chit. Cr. L. 204 (i), and authorities ' Rescous.'
there cited. • (i) See R. v. Walshe [1876], Ir. Rep. 10

{d) R. V. Butterfield, ubi sup. {j) R. v. Williams, 1 Den. 529. The

(e) See 14 & 15 Vict. c. 92, a. 19, as to point decided was that the warrant was

these offences in Ireland As to liability unlawful.
for supplying impounded cattle with food,

CHAP, lit] Of Rescue of Goods Lawfully Seized. 553

to be specified in the warrant was satisfied by a reference in the warrant
to the collector's book delivered at the time to the collector, and by such
reference the book became incorporated with the warrant (k). But
where on a similar indictment the warrant was in the same form as in the
preceding case, but the occupiers were described in the collector's book
as ' tenants of commons,' it was held that the collector had no authority
to distrain on the actual occupier, as the description in the book was
insufficient [l).

On a similar indictment it appeared that in the rate-book and distress
warrant the occupier was described as J. W. Evidence was given that
J. W. was the occupier when the rate was struck, but had died before
issue of the warrant. It was held that the distress was lawful as the
collector, under 6 & 7 Vict. c. 92, s. 6, was entitled to distrain all goods
and chattels, to whomsoever they might belong, found on premises
in respect of which any person was rated as occupier (m).

In Ireland rescue without actual force from a special bailiff of a cow
taken by him under a civil bill decree was held not to be indictable at
common law (n). In another case a bailiff under a sheriff's warrant
addressed to him alone, and not to him and his assistants, seized goods in
execution, and left them in charge of keepers and went away. During
his absence the goods were rescued by the defendant from the keepers.
It was held that on these facts the defendant could not lawfully be
convicted of having by threats and violence compelled the bailiff to
abandon the seizure (o).

For a man to retake from a sheriff's officer his own goods seized under
a writ of execution against the goods of another though apparently not
larceny (p) might perhaps involve the offence of rescue (q).

(k) R. V. Brenan, 6 Cox. 381. The cow was seized on the lands in the oocupa-

warrant was headed, ' General warrant' to tion o£ N. Walshe, but belonged to the

coUeot and levy poor-rate, Gorey Union,' prisoner, and could not lawfully be taken

and directed the collector ' to levy the in pursuance of the decree. Rescue of

several poor-rates, and arrears of poor- goods, &c., taken under a civil bill decree

rates, in the annexed book set forth, from is a misdemeanor under the Civil Bill Courts

the several persons therein rated, or other (Ireland) Act, 1864(27 & 28Vict. c. 99),s. 20.
persons liable to pay the said rates and (o) R. v. Noonan, Ir. Rep. 10 C. L. 505

arrears of rates,' and was signed by the The judges were not unanimous. The in-

chairman of the guardians, two guardians, dictment was apparently framed on 27 & 28

and the clerk of the union at a meeting of Vict. c. 99, s. 26. PaUes, C.B., raised the

the board. question whether, on an indictment dffier-

(l) R. u. Boyle, 7 Cox, 428 ; 6 Ir. C. L. R. ently framed, the evidence might have

598. warranted a conviction (p. 508).

(m) R. V. Westropp [1851], 2 Ir. C. L. R. (p) R. v. Knight, 73 J.P. 15.

217. (q) But see Earl of Bristol v. Wilsmore,

(n) R. V. Walshe, Ir. Rep. 10 C. L. 511. 1 B. & C. 574.
The decree was against N. Walshe, and the

( 554a )

CANADIAN NOTES.
Sec. 1. — Of Oistructing Process.

Resisting or Obstructing Public Officer. — Code sec. 168.

For Definition of Public Offiiper. — See Code sec. 2(29).

Resisting or Obstructing Peace Officer. — Code sec. 169.

For Definition of Peace Officer. — See Code sec. 2 (26).

Summary Trial of Offence. — Code sec. 773.

Where a bystander states to other bystanders in the hearing of
a police ofScer making an arrest for drunkenness, that the person
being arrested is not drunk, such does not constitute the offence of
obstructing a peace officer, if the statement is made bond fide, and in
the belief of its truth. If, in an unwarranted attempt of the police
to arrest the bystander, the latter strikes a policeman, he is not guilty
of an assault upon the peace officer in the execution of his duty, for
the policeman had no duty to arrest him. The King v. Cook, 11 Can.
Cr. Cas. 32.

Where the process of an inferior Court is void by reason of its
containing a direction to a peace officer to seize certain goods at a
place outside of the territorial jurisdiction of the Court, such process
isr msnfficient upon which to base a conviction for resisting the officer
in its execution. E. v. Finlay (1901) , 4 Can. Cr. Cas. 539 (Man.) .

Where a bailiff obtained possession of goods under a writ of re-
plevin, but at the request of the party in whose possession they were
seized they were given by the bailiff into the possession of a third
party, the latter giving the bailiff an undertaking or agreement to
deliver him the goods on demand, it was held that in attempting to
retake the goods in the possession of the third party the bailiff was
not acting in the execution of any "process," but merely upon the
undertaking. R. v. Carley, 18 C.L.T. 26.

The re-taking of possession by the vendor under a contract for the
conditional sale of chattels is not within the term "lawful distress or
seizure" as here used, and an obstruction of the vendor's bailiff in
regaining possession is not an offence under this section. R. v. Shand
(1904), 8 Can. Cr. Cas. 45, 7 O.L.R. 190.

Punishment on Summary Conviction. — Code sec. 781.
As the penalty under Code sec. 169 is imprisonment or fine, and
under Code sec. 781 may be both imprisonment and fine, the question

5546 Obstructing Process. [book vii.

has arisen whether a magistrate with power to do alone such acts as are
usually required to be done by two or more justices must not be
governed by the provisions of Part XVI, to the exclusion of power
to act under Code sec. 169.

In R. V. Crossen (1899), 3 Can. Cr. Cas. 153 (Man.), it was held
that the parties accused of resisting a peace officer in the execution
of his duty could not be tried summarily by two justices except after
compliance with Code sec. 778, notwithstanding Code sec. 169, and
this ruling was followed in R. v. Carmichael (1902), 7 Can. Cr. Cas.
167 (N.S.).

In R. V. Nelson (1901), 4 Can. Cr. Cas. 461 (B.C.), it was held
by Mr. Justice Drake that the accused can be tried summarily by the
magistrate under the summary convictions clauses of the Code, or he
can be tried before a magistrate as for an indictable offence.

In R. V. Jack (No. 2) (1902), 5 Can. Cr. Cas. 304, Mr. Justice
Walkem, of the Supreme Court of British Columbia held that the
offence of obstructing ,a peace officer in the performance of his duty,
where an .assault upon the officer is not also charged, may be sum-
marily tried either by two justices of the peace, or a police magistrate
under the summary convictions part of the Code by virtue of see.
169 ; and that the latter section is not controlled by the provisions
of sees. 773 and 781 as to the summary trial of the like offence before
a magistrate with the consent of the .accused.

In the opinion of Walkem, J., the punishment on summary con-
viction is limited to that specified in see. 169. See. 781 providing a
different punishment on a trial before a magistrate with the consent
of the accused would have no application where the procedure imder
the summary convictions clauses was followed.

Semble, if the charge were for an assault on the officer in the per-
formance of his duty, sees. 773 and 781 would then apply and not
sec. 169.

In the Province of British Columbia the magistrate has absolute
jurisdiction to proceed under the summary trials' part (XV.) by sec.
784(3) without the consent of the .accused, and to award both fine
and imprisonment under sec. 776.

It is necfessary for the prosecution to prove that rent, was due
and in arrear before a conviction can be made under this section for
the offence of wilfully obstructing a lawful distress. On such a
charge evidence is admissible for the defence in proof that no rent
was due. R. v. Harron (1903), 7 Can. Cr. Cas. 543, 6 O.L.R. 668.

( 555 )

CHAPTER THE FOURTH.

OF ESCAPES.

A. General Rule,

An escape is where one who is arrested gains his liberty before he is
delivered by due course of law {a). It is distinct from flight from justice
before arrest (6).

The term ' escape ' is usually applied where the liberation of the prisoner
is effected either by himself or others, without force. Where it is effected
by the prisoner himself with force, it is called prison-breahing ; and where
it is effected by others, with force, it is commonly called a rescue (c).

Escapes fall into three classes — escape by the prisoner, escape suffered
by an officer of the law, and escape suffered by a private person who has
the prisoner in custody. But these distiactions, while recognised as to
common law offences, cannot be applied with exactness to the statutes
regulating offences of these classes.

B. Escapes by the Party,

As all persons are bound to submit themselves to the judgment of the
law, those who, when lawfully arrested on crimiaal process, free them-
selves from custody before they are put in a prison or other legal place of
detention, are guilty of a misdemeanor, punishable by fine and imprison-
ment (d). It is also crimiaal in a prisoner to escape from lawful confine-
ment on a criminal charge though no force or artifice be used on his part
to effect such purpose. Thus, a prisoner is guilty of a misdemeanor if he
goes out of his prison by licence of the keeper (e), without any obstruction,
the doors being open by the consent or negligence of the gaoler, or if he
escapes in any other manner, without using any kind of force or
violence, or if after his prison has been broken by others, without his
procurement or consent, he escapes through the breach so made(/).

The punishment for escape by the party is fine and (or) imprison-
ment (g). The common law as to escape has been usually regarded as

(a) Termes de la Ley. (e) Att.-Gen. v. Hobert, Cro. Car. 210 ;

(6) Provision is made for the arrest of 79 E. R. 784.

persons charged with indictable offences, (/) 1 Hale, 611. 2 Co. Inst. 589, 590.

who fly from justice out of the country in Sum. 108. Staundf. 30, 31. 2 Hawk,

which the offence was committed. See 11 c. 18, ss. 9, 10. 31 Edw. III. stat. 1, e. 3,

& 12 Vict. 0. 42, ss. 12, 13, 14, 16 ; Extra- post, p. 561.

dition Acts, 1870-1906 ; and Fugitive (g) 14 & 15 Vict. c. 100, a. 29, authorises

Offenders Act, 1881. the imposition of hard labour for ' escape,'

(d) 2 Hawk. c. 17, s. 5. 4 Bl. Com, 129. meant, or escape suffered by custodians.

556 Of Offences against the Administration of Justice, [book vil.

applying only to persons in custody on a criminal charge, but in one case
it has been held as misdemeanor at common law for a prisoner to escape
who was in gaol under the order of a bankruptcy court Qi).

C. Escapes suffered by Officers of the Law.

An escape of this kind must be from lawful custody.

There must have been an actual arrest ; and if an officer, having a
warrant to arrest a man, sees him shut up in a house and challenges
him as his prisoner, but never actually has him in custody, and the party
gets away from the house, the officer cannot be charged with an escape (i).

The custody must be lawful ; for, if a man is arrested for a supposed
crime, when no such crime was committed, and the party is neither
indicted nor charged, or for such a slight suspicion of an actual crime
and by such an irregular process as will not justify arrest or detention, the
officer is not guilty of an escape by suffering the prisoner to go at large (j).
But if a warrant of commitment plainly and expressly charges a man
with treason or felony, though it be not strictly formal, the custodian
suffering an escape is punishable ; and where commitments are good in
substance, the ciistodian is as much bound to observe them as if they
were made ever so exactly (h). Whenever an imprisonment is so far
irregular that it will be no offence in the prisoner to break from it by force,
it can be no offence in the officer to suffer him to escape (l).

It is generally considered that the imprisonment must be for some
criminal matter. The escape of one committed for petty larceny (m)
was criminal ; and on general principles of law to suffer the escape
of a person committed for any other crime whatsoever would also be
criminal (w). It has been held criminal to assist the escape of a man
arrested under order of a bankruptcy court ; and this decision would
seem to depend for its justification on the conception that escape from
lawful custody in a civU matter is a criminal offence (o).

A sheriff who allows a prisoner on civil process to escape is liable to
attachment or to summary punishment under the Sheriffs Act, 1887 {p).
The imprisonment must also be continuing at the time of the escape ;
and its continuance must be grounded on that satisfaction which public
justice demands for the crime committed.

Voluntary Escape. — According to the older authorities whenever

(A) R. V. Allan, C. & M. 295, Commis- (o) R. v. Allan, 0. & M. 295.

sioner Rogers, after consulting Erskine and (p) 50 & 51 Vict. c. 55, s. 29. As to

Wightman, J J. See 2 Hawk. c. 6 ; 2 Co. escape of civil prisoners from local prisons,

Inst. 589, 590. see post, p. 571. It is said not to have been

(i) 2 Hawk. c. 19, s. 1. criminal to let a prisoner go who had been

(?) Ibid. s. 24. acquitted and detained until he paid his

{k) Ibid. 3. 24. A commitment to a fees. 2 Hawk. c. 19, s. 4. This matter,

prison, and not to a person, was held good discussed in the last edition (vol. 1, p. 891,

in R. V. Feu, 1 Ld. Raym. 424. and note), is no longer material, as no fees

(I) Id. ibid. D. 2. And see post, pp. 563, are now payable by prisoners to gaolers or

^'^3' ^, ,. . . officers of the Court: and penalties are

(m) The distmction between grand and imposed for exacting them or detaining

petit larceny was abolished in 1827 by 78 prisoners for non-payment. 55 Geo. III.

Geo. IV. c. 29, s. 2, re-enacted in 1861 as c. 60, ss. 4, 5, 9, 13 ; 8 & 9 Vict, c 114.

24 & 25 Vict. 0. 96, s. 2. And see Mee v. Cruik'shank 20 Cox 210

(») 2 Hawk. c. 19, s. 3. 1 Hale, 592. '

CHAP. IV.] Of Escafes suffered by Officers of the Law. 557

an officer, having the custody of a prisoner charged with, and guilty of,
a capital offence, knowingly gives him his liberty with an intent to save
him either from trial or execution, such officer is guilty of a voluntary
escafe, and liable to the same punishment as the prisoner whom he has
allowed to escape {q). Hawkins says that Hale was of opinion (r) that
in some cases an officer might be guilty of a voluntary escape who had
no intention to save the prisoner, but meant only to give him a liberty
which, by law, he had no colour or right to give (s) ; but dissents from
Hale's ojpinion, on the ground that it is not sufficiently supported by
authorities, and does not seem to accord with the purview of 5 Edw. III.
c. 8 (t). He considers that a person who has power to bail is guilty
only of negligent escape, by bailing one who is not bailable ; and
that in some cases an officer found to have knowingly given his prisoner
more liberty than he ought to have had (as by allowing him to go out of
prison on a promise to return ; or to go amongst his friends, to find some
who would warrant goods to be his own which he is suspected to have
stolen), seems to have been only adjudged guilty of a negligent escape (u).
And suggests that if, in these cases, the officer were only guilty of a
negligent escape, in suffering the prisoner to go out of the limits of the
prison, without security for his return, he could not have been guilty
in a higher degree if he had taken bail for his return ; and that it is there-
fore reasonable to infer that it cannot be a general rule that an officer
is guilty of a voluntary escape by bailing his prisoner, whom he has no
power to bail, but that the judgment of all offences of this kind must
depend upon the circumstances of the case ; such as the heinousness
of the crime with which the prisoner is charged, the notoriety of his guUt,
the improbability of his returning to render himself to justice, the inten-
tion of the officer, and the motives on which he acted {v).

Under the present law the question of granting bail is for the High
Court or for justices of the peace and not for governors of prisons, and all
felonies and misdemeanors are bailable. The police have certain powers
of releasing on bail, but not in the case of indictable offences. So that the
opinions of Hale and Hawkins are now only of abstract interest.

At common law a gaoler was bound to keep persons entrusted to him
until delivered under order of a Court or otherwise in due course of law,
and could not transfer them to another gaol without judicial directions
By the Prison Act, 1865 (28 & 29 Vict. 126), ss. 63, 64, and 65, prisoners
may under certain circumstances be removed from one prison to another
and into different jurisdictions, without the gaoler incurring any liability
for escape (w).

Negligent Escape. — A negligent escape is where the party arrested

{q) Staundf. 33. 2 Hawk. c. 19, s. 10. was allowed out by licence of the gaoler, on

i Bl. Com. 129. the ground of sickness in the prison. Haw-

(r) Sum. 113. 1 Hale, 596, 597. kins says that, generally, the old cases on

(«) e.g., if a gaoler bailed a prisoner who this subject are so very briefly reported

was not bailable. that it is very difficult to make an exact

(<) Relating to improper bailing of per- state of the matter from them.

sor« by marshals of the King's Bench. (w) 2 Hawk. c. 19, s. 10.

Repealed in 1887 (S. L. R.). {w) See also ss. 24-28 of the Prison Act

(u) See Att.-Gen. v. Hobert, Cro. Car. 1877 (40 & 41 Vict. c. 21), and s 11 of the

210 ; 79 B. R. 784. The prisoner was in Prison Act, 1898 (61 & 62 Vict. c. 41).
the Gatehouse Prison for misdemeanor, and

558 Of Offences against the Administration of Justice, [book vii.

or imprisoned escapes against the will of him that arrests or imprisons
him, and is not freshly pursued and taken again before he has been lost
sight of {x). Where a party so escapes the law will presume negligence
in the officer. Thus, if a person in custody on a charge of larceny,
suddenly, and without the assent of the constable, kills, hangs, or drowns
himself, this is considered as a negligent escape in the constable (y).
Hale says that if a prisoner charged with felony breaks a gaol, this seems
to be a negligent escape, on the ground that the. gaol should have been
more secure or the of&cers more vigilant (z).

Undoubtedly an escape happening from defects in these particulars
would come within the principle of guilty negligence in those responsible
in the proper custody of the criminal ; but it is submitted that a person
charged with a negligent escape under such circumstances would be
entitled to shew in his defence that all due vigilance was used, and that
the gaol was so constructed as to have been considered by persons of
competent judgment a place of perfect security (a).

If a justice of peace bails a person not bailable by law, it excuses the
gaoler, and is not felony in the justice, but is said to render him liable
to fine as for a negligent escape (b). Whoever de facto occupies the office
of custodian of a prisoner is liable to answer for a negligent escape (c).
But it seems that an indictment for a negligent escape wUl only lie
against those officers upon whom the law casts the obligation of safe
custody. Thus, on an indictment against one of the yeoman warders
of the Tower and the gentleman gaoler, for permitting the escape of
P. who had been committed for high treason, it appeared that the
constable of the Tower had committed P. to the special care of the yeo-
man warder ; but the Court held that the defendants were not such
officers as the law took notice of, and therefore could not be guUty of a
negligent escape (d). But a sheriff is as much liable to answer for an
escape suffered by his bailiff as if he had actually suffered it himself ;
and the Court may charge either sheriff or bailiff for such an escape (e).

{x) Dalt. c. 159. Burn's Just. tit. (a) Neglect to keep gaols in a proper
' .Escape,' IV. state of repair seems to have been treated
{y) Dalt. u. 159. as indictable. See the precedents of in-
(z) 1 Hist. P. C. 600, where it is said that diotments for this offence, 4 Wentw. 363,
' therefore it is lawful for the gaoler to Cro. Giro. Comp. 189. Cro. Circ. Ass. 398 ;
hamper them with irons, to prevent their 3 Chit. Or. L. 668, 669. The duty of main-
escape.' But see the note (a) ibid., where taining ' prisons ' in proper condition now
it is said that this liberty can only be in- devolves on the Prison Commissioners and
tended where the oificer has just reason to their staff. The obligation as to the main-
fear an escape, as where the prisoner is un- tenanoe of lock-ups and cells devolves on
ruly, or makes any attempt for that pur- the local police authority,
pose ; but that otherwise, notwithstanding (6) At common law, according to Y. B.
the common practice of gaolers, it seems 25 Edw. III. 39 (in the last edition of the
altogether unwarrantable, and contrary to year books mispaged 25 Edw. III. 82 a).
the mildness and humanity of the laws of He was also liable to be fined by justices of
England, by which gaolers are forbidden to gaol delivery, by 1 & 2 Ph. & M. o. 13
put their prisoners to any pain or torment. (repealed 1826, 7 Geo. IV. c. 64, 8. 32).
3 Co. Inst. 34, 35. Custodes gaolarum See 1 Hale, 696, and as to escapes by ad-
pmnam siU commissis lion augeant, nee eos mitting to bail or to improper liberty, ante
torgueant vel redimant, sed omni scevitia p. 557.
remota pietateque adhibita judicia dehite (c) 2 Hawk. c. 19 s. 28.
exequantur. Elet. Lib. 1, cap. 26. Coke in (a!) R. v. HiU, old Bailey, Jan., 1694
his commentary on 13 Edw. I.(Stat.Westm. Bum's Just. tit. ' Escape,' III. R. v. Rich
2),c. 11, is express, that by the common law Old Bailey, Jan., 1694, MS. Bayley, J. '
it might not be done. 2 Co. Inst. 381. (e) 2 Hawk. e. 19, s. 29, and R. 'v. Fell

CHAP. IV.] Of Escapes suffered by Officers of the Law. 559

The difference between voluntary and negligent escape is important
in considering the effect of the retaking of a prisoner after he had been
suffered to escape.

When an officer has voluntarily suffered a prisoner to escape, it is said
that he can no more justify retaking him than if he had never had him
in custody ; because, by his own free consent, he has admitted that he has
nothing to do with him ; but if the prisoner returns and puts himself
agaiu under the custody of the officer, it seems that the officer may
lawfully detain him, and take him before a justice to be dealt with
according to law (/).

An officer who makes fresh pursuit after a prisoner, who has escaped
through his negligence, may retake him at any time afterwards, whether
he finds him in the same or a different county : and it would seem that
an officer who has negligently suffered a prisoner to escape, may retake
him, wherever he finds him, even without fresh pursuit. For since the
liberty gained by the prisoner is whoUy owing to his own wrongful
act, there seems no reason why he should have any manner of advantage
from it (g). If the officer pursues a prisoner, who flies from him, so
closely as to retake him without losing sight of him, this is not in law an
escape ; but if the officer once loses sight of the prisoner, it seems that be
wiU be guilty of a negligent escape, even though he retakes him imme-
diately afterwards (h). And where he has been fined for the escape he
does not purge the offence or avoid the fine by retaking the prisoner (*').
Nor can he excuse himself by killing a prisoner in the pursuit (j),
though he could not possibly retake him {k).

The offence of suffering an escape is an indictable misdemeanor, but
may be proceeded against by attachment of criminal information (l).

Where persons present in a Court of record are committed to prison
by such Court, the keeper of the prison of the Court is bound to have
them already to produce when called for, and if he fails to produce them,
may be adjudged guilty of an escape, without further inquiry ; unless
he has some reasonable excuse ; as that the prison was set on fire, or
broken open by enemies, &c., for he is precluded by the record of the
commitment from denying that the prisoners were in his custody (m).
It has been said (n), that if a gaoler says nothing in excuse of such an
escape, it shall be adjudged voluntary : but it seems difficult to main-
tain that where it is not certain, whether an escape is negligent or volun-
tary, it ought to be adjudged a crime of so high a nature, without a
previous trial (o). With respect to prisoners not committed by a Court of

1 Ld. Raym. 424. See the Sheriffs Act, 12. 2 Hawk. c. 19, ss. 6, 13.

1887 (50 & 51 Vict. c. 55), s. 29. (1) In R. v. Gaoler of Shrewsbury, 1 Str.

(/) 2 Hawk. c. 19, s. 12 ; c. 13, ». 9. 532, the Court refused to grant an attach-

Dalt. c. 169. Burn's Just. tit. ' Escape.' ment against a gaoler for a voluntary

{g) 2 Hawk. c. 19, s. 12. escape of one in execution for obstructing

{h) Staundf. 33. 1 Hale, 602. 2 Hawk. an excise ofSoer in the execution of his

c. 19, ss. 6, 13. office, but ordered him to shew cause why

(i) 2 Hawk. c. 19, ss. 12, 13. there should not be an information.

ii) As to the custodian's right to wound (m) 2 Hawk. o. 19, s. 15. In such cases

or kill an escaped prisoner in the attempt there is » remedy by attachment for not

to retake him, see R. v. Dodson, 2 Den. 35 producing the prisoner,

(felony) ; R. v. Forster, 1 Lew. 187 (mis- (re) Staundf. 34. 1 Hale, 599, 603.

demeanor). (o) 2 Hawk. c. 19, s. 15.

(k) Staundf. 33. 1 Hawk, c, 28, ss, 11,

560 Of Offences against the Administration of Justice, [book vii.

record, but in the lawful custody of any person, by any other means
whatsoever, it seems to be agreed that the custodian is not punishable
for an escape, except on indictment (p).

According to the older authorities a person who had suffered another
to escape could not be arraigned for such escape as for felony, until
the principal had been attainted ; on the groimd that he was only punish-
able as an accessory to the felony, and that the general rule was, that
no accessory ought to be tried until the principal had been attainted {q) ;
but that he might be indicted and tried for a misprision before any
attainder of the principal offender ; for, whether such offender were
guilty or innocent, it was a high contempt to suffer him to escape.
If, however, the commitment were for high treason, and the person
committed actually guilty of it, it was said that the escape was imme-
diately punishable as high treason also, whether the party" escaping
were ever convicted of such crime or not ; and the reason given was,
that there are no accessories in high treason (r). Under the present
law the rules as to the trial of accessories are different (s). But the
effect of the change on the offence of voluntary escape has not been
judicially determined.

Every indictment for negUgent or voluntary escape should expressly
shew that the party was actually in the defendant's custody for some
crime, or upon some commitment upon suspicion of crime {t). Judgment
was arrested upon an indictment which stated that the prisoner was in
the defendant's custody, and charged with a certain crime, but did not
state that he was committed for that crime ; for a person in custody may
be charged with a crime, and yet not be in custody by reason of such
charge (m). But where a person was committed to the custody of a
constable by a watchman, as a loose and disorderly woman and a street-
walker, it was held, upon an indictment against the constable for dis-
charging her, that by an allegation of his being charged with her, ' so
being such loose,' &c., it was sufficiently averred that he was charged
with her ' as such loose,' &c. ; and it was also held unnecessary to aver
that the constable knew the woman to be a street- walker (v). And every
indictment should also shew that the prisoner went at large (w) ; and
also the time when the offence was committed for which the party was

(p) 2 Hawk. c. 19, s. 16. It is laid down as Giro. Ass. 338, is an indictment as for a

a rule, that though where an escape is finable, misdemeanor against a gaoler, for wilfully

the presentment of it is traversable ; yet permitting a prisoner to escape who was

that where the offence is amerciable only, under sentence of imprisonment for the

there the presentment is of itself conclu- term of six months, after a conviction of

sive ; such amerciaments being reckoned grand larceny ; but it seems that it ought

amongst those minima de quibus non curat to have been laid as a felony. See 2 Stark.

lex (Staundf. c. 32, p. 36) ; and this dis- Cr. PI. 600, note (6), referring to R. v. Bur-

tinction is said to be well warranted by the ridge, 3 P. Wms. 497 ; 24 E. R. 1154.

old books (2 Hawk. u. 19, o. 21) : and see {»■) 2 Hawk. o. 19, s. 26.

post, p. 561. («) Ante, p. 130.

(j) As to present rule, vide ante, p. 130. (i) Id. ibid. s. 14.

A person who has suffered a convicted felon {«) R. o. Fell, 1 Ld. Raym. 424 ; 2 Salk.

to escape is an accessory after the fact, R. v. 272.

Burridge,3P.Wms.439; 24E.R. 1133; and {v) R. v. Bootie, 2 Burr. 864. As to the

therefore a person who suffers or aids the sufficiency of such averments, see R. ■;;.

escape of a felon may be tried for a substan- Boyall, 2 Burr. 832.

tive felony as an accessory after the fact; and {w) 2 Hawk. c. 19, s. 14
see Hollowaj v. R., 17 Q. B. 317. In Cro.

CHAP. IV.] Of Escapes suffered by Officers of the Law. 561

in custody ; that it may appear that it was prior to the escape (x). An
indictment for a voluntary escape should aUege that the defendant
' feloniously and voluntarily permitted the prisoner to go at large ' (y) ;
and should state the particular crime for which the party was imprisoned ;
for it will not be sufficient to say, in general, that he was in custody for
felony, &c. (z). But it is questionable whether such certainty, as to the
nature of the crime, is necessary in an indictment for a negligent escape ;
as it is not in such case material whether the person who escaped were
guilty or not (a).

Jurisdiction.— By 3 Edw. I. (Stat. West, 'prim.), c. 3 (6), the proceedings
and trial for the offence of an escape were to be had before the justices
in eyre of assize ; but the statute did not affect the jurisdiction of the
Court of King's Bench (c). 31 Edw. III. stat. 1, c. 14, enacts, that
' the escape of thieves and felons, and the chattels of felons, and of
fugitives, and also escapes of clerks convict out of their ordinaries' prison,
from thenceforth to be judged before any of the King's justices, shall be
levied from time to time, as they shall fall as well of the time past as of
the time to come' {d). The Act seems not to be limited to justices ' in
eyre,' and justices of gaol delivery may punish justices of peace for a
negligent escape, in admitting persons to bail who are not bailable (e).

Punishment. — It is considered that voluntary escape amounts to the
same kind of crime as the offence of which the party was guilty, and for
which he was in custody ; whether the person escaping were actually
committed to gaol, or under arrest only, and not committed ; and
whether he were ' attainted,' or only accused but not indicted, of such
crime (/). No one is Uable to the higher degree of punishment for a
voluntary escape but the person actually permitting of it ; therefore, a
principal gaoler was held to be only finable for a voluntary escape suffered
by his deputy {g).

B. Negligent Escape. — Whenever a person is found guilty upon
indictment of a negligent escape of a criminal actually in his custody,
he is liable to a fine (h). It is said that, by the common law, the penalty

{x) And also that it was subsequent to escape of a felon was within the benefit of

the last general pardon. 2 Hawk. c. 19, clergy, even if the felony of the principal

s. 14. On an indictment for an escape, a was not clergyable. 1 Hale, 599. A

pardon, if relied on as an excuse, must be gaoler guilty of voluntary escape was not

proved by the defendant. R. v. Fell, 1 Ld. Eable to capital punishment unless the of-

Raym. 424. fence for which the party escaping was

(y) Felonice et Voluntarii A. B. ad committed was capital at the time when he

largum ire permisit. escaped. 2 Hawk. c. 19, s. 25.

{z) 2 Hawk. c. 19, s. 14. (?) R. v. FeU, 1 Ld. Raym. 424 ; 2 Salk.

(o) Id. ibid. 272. 1 Hale, 597, 598.

(6) Repealed in 1863 (26 & 27 Vict. {h) 2 Hawk. o. 19, s. 31, where the author

u. 125). says, ' It seems most properly to be called

(c) Staundf. o. 32, p. 35. Eo que le banhe a fine. But this does not clearly appear
le roy est un eire, et plus haul que un eire, car from the old books ; for in some of them it
si le eire sea in un county, el le banhe le roy seems to be taken as a fine, in others as an
veigne la, le eire cessera. amerciament ; and in others it is spoken of

(d) This enactment is not repealed. generally as the imposition of a certain sum,

(e) 2 Hawk. c. 19, s. 19. and without any mention of either fine or
(/) 2 Hawk. u. 19, s. 22. It does not amerciament.' There is probably a mis-
matter whether the person suffering a conception as to the nature of a fine in
voluntary escape was rightfully entitled to mediaeval times. See 2 PoUock & Mait-
keep the gaol if he assumed the custody of land, Hist. Eng. Law, 512.

the gaol in fact. Ibid. s. 23. Voluntary
VOL. I.

562 Of Offmces against the Administration of Justice, [book vii.

for suffering the negligent escape of a person ' attainted ' was of course
a hundred pounds, and for suffering such escape of a person indicted,
and not attainted, five pounds, and that if the person escaping were
neither attainted nor indicted, it was left to the discretion of the Court
to assess such a reasonable forfeiture as should seem proper. And it
Seems also, that if the party had escaped twice, these penalties were, as
of course, to be doubled ; but that the forfeiture was no greater for
Suffering a prisoner to escape who had been committed on two several
accusations, than if he had been committed but on one [i).

In 14 & 15 Vict. c. 100, s. 29 (/), which allows a sentence of imprison-
Oient with hard labour for escape, it is not stated whether it is meant to
apply to escape permitted by the gaoler or escape by the party.

The law with respect to escapes suffered by private persons is in
general the same as in relation to those suffered by officers. Wherever
any person has another lawfully in his custody, whether upon an arrest
made by himself or another, he is guilty of an escape if he suffers him to
go at large before he has delivered him over to some other who by law
ought to have the custody of him. If a private person arrests another
on suspicion of felony, and delivers him into the custody of another
private person, who receives him and suffers him to go at large, it is said
that both of them are guilty of an escape ; the first, because he should
not have parted with him till he had delivered him into the hands of a
public officer ; the latter, because, having charged himself with the
custody of a prisoner, he ought, at his peril, to have taken care of him {Jc).

But where a private person, having made an arrest on suspicion of
felony, delivers over his prisoner to the proper officer, as the sheriff or
his bailiff, or a constable, from whose custody the prisoner escapes, the
private person will not be chargeable (J).

A private person who voluntarily allows his lawful prisoner to escape
is punishable as an officer would be for the same offence (m) ; and for an
escape due to his negligence, he is punishable by fine and imprisonment
at the discretion of the Court {n).

(i) 2 Hawk. c. 19, =. 33. As to liability 595. Staundf. 34. Sum. 112, 114. The
to forfeiture of office, see s. 30. Hawkins proper course to be pursued by a private
states (Bk. ii. o. 19, s. 32, and more fully person, who has arrested a person on a
u. 37, s. 28) that a negligent escape may be charge of felony, is, as soon as he reasonably
pardoned before it happens ; but a volun- can, to hand him over to the police or take
tary one cannot be so pardoned ; such par- him before a magistrate, to be dealt with
don would be by way of indemnity. As to according to law. See Reed v. Cow-
pleading a pardon by way of excuse to an meadow, 7 C. & P. 821, Parke, B. ; and
indictment, see R. -o. Tell, 1 Ld. Raym. 424. Edwards v. Ferris, 7 C. & P. 542, Patte-

(j) Ante,, p. 213. son, J.

(k) 2 Hawk. o. 20, ss. 1, 2. 1 Hale, 595. (m) Ante, p. 556.

Sum. 112. (n) 2 Hawk. c. 20, s. 6. See 14 & 15

(I) 2 Hawk. c. 20, ss. 3, 4. 1 Hale, 594, Vict. c. 100, s. 29, ante, p. 213.

( 562ft )

CANADIAN NOTES.

ESCAPES BY THE PARTY.

Being at Large. — Code sec. 185.

It may be proved as a defence that the prisoner is at large condi-
tionally under a license or ticket of leave or otherwise, and that the
conditions have been observed. R.S.C. (1906) ch. 150. The license
issued under the authority of that statute may be revoked by the
Governor- General either with or without cause assigned. R. v. John-
son, 4 Can. Cr. Cas. 178 (Que.). The ]:evocation by the Crown without
cause assigned does not interrupt the running of the sentence, and the
latter terminates at the same time as if no license had been granted.
Ibid.

Without Lawful Excuse. — Upon a summary conviction of the
defendant and the passing of sentence of four months' imprisonment,
for breach of a provincial law, the magistrate of his own motion re-
quired the defendant to enter into a recognizance to appear when
called upon (a procedure not authorized in such cases) and upon doing
so the defendant was released. The defendant having been afterwards
imprisoned under a warrant issued two months after the date of sen-
tence, held that the term of imprisonment is to be counted from the
day of passing sentence and that the defendant was not liable as upon
an escape to make up the period for which he was so at liberty, as there
was no mens rea and the magistrate's action was a "lawful excuse"
quoad the defendant. R. v. Robinson (1907), 12 Can. Cr. Cas. 447,
per Riddell, J.

The time during which a person under sentence is improperly at
liberty through an erroneous order for bail, is not to be counted as part
of the term of imprisonment. R. v. Taylor (1906), 12 Can. Cr. Cas.
245, per Stuart, J.

Escapes after Conviction or From Prison. — Code sec. 189.

Escape from Lawful Authority. — Code sec. 190.

Escape from Reformatories. — R.S.C. (1906) ch. 148, sec. 22.

Escape from Industrial Refuge. — R.S.C. (1906) ch. 148, sec. 23.

Additional Term as Punishment. — R.S.C. (1906) ch. 148, sec 24.

Escape by Failure to Perform Legal Duty. — Code sec. 193.

Escape Suffered by Officer of the Law.

Permitting Escape of Prisoner under Sentence of Death or Impri-
sonment for Life, etc. — Code sec. 191.

5626 Rescues and Escapes. [book vii.

Permitting Escape of Prisoner under Sentence for Less than life,
etc. — Code see. 192.

A prisoner who is charged before justices with an indictable offence
and who is verbally remanded, after the examination of witnesses, until
the following day in order to procure bail or, in default, be committed,
is not in the custody of the ofSeer merely for the purpose of enabling
him to procure bail, but under the original warrant, and the ofScer is
liable to conviction if he negligently permits him to escape. R. v.
Shuttleworth, 22 U.C.Q.B. 372.

( 563 )

CHAPTEE THE FIFTH.

PRISON BREAKING.

Common Law. — Where a person who is lawfully in prison effects his
escape hy force or against the gaoler's wiU {a), the offence is usually called
prison hreaJcing ; and such breach of prison, or even the conspiring to
break it, is felony at common law, for whatever cause, criminal or civil,
the party was lawfully imprisoned (6) ; and whether he were actually
within the walls of a prison or only in the stocks, or in the custody of any
person who had lawfully arrested him (c). At common law the offender
was liable to suffer death on conviction, but the severity of the common
law is mitigated by a statute of 1295 (23 Edw. I. {d), De frangentibus
frisonam), which enacts, ' That none, from henceforth, that breaketh
prison, shall have judgment of life or member for breaking of prison only ;
except the cause for which he was taken and imprisoned did require such
judgment, if he had been convict thereupon, according to the law and
custom of the realm, albeit in times past it hath been used otherwise.'
Thus though to break prison and escape, when lawfully committed for
any treason or felony, remains still felony as at common law ; to break
prison when lawfully confined upon a lesser charge, is punishable only
as a misdemeanor, i.e., by fine and imprisonment (e).

Any place whatsoever wherein a person, under a lawful arrest for a
supposed crime, is restrained of his liberty, whether in the stocks, or the
street, or in the common gaol, or the police cells, or the house of a constable
or private person, is a prison at common law (/) and within the meaning
'of the above statute ; for ' imprisonment ' means restraint of liberty (g').
The statute extends as well to a prison in law as to a prison in deed Qi).

A person taken upon a capias, awarded on an indictment against
Hm for a supposed treason or felony, is within the statute if he breaks
prison, whether such crime were or were not committed by him or by any
other person ; for there is an accusation against him on record, which
makes his commitment lawful, though he may be innocent and the
prosecution groundless. And if an innocent person be lawfully com-
mitted to prison on such a suspicion of felony (actually done by some
■other) as will justify his imprisonment, though he be not indicted, he
is within the statute if he break the prison ; for he was legally in custody,

(a) Att.-Gen. v. Hobert, Oo. Car. 210 ; and translations as 1 Edw. II. stat. 2.
29 E. E. 784. (e) 4 Bl. Com. 130.

(6) 4 Bl. Com. 129. 1 Hale, 607. Bract. (/) Att.-Gen. u Hobert, Ore. Car. 210 ;

I. 3, 0. 9. 2 Co. Inst. 588. 79 E. R. 784.

\d) Described in the old printed copies (h) 2 Co. Inst. 589.

2 0 2

564 Of Offences against the Administration of Justice, [book vii.

and ought to have submitted to it until he had been discharged by due
course of law (t).

But if no felony at all was committed, and the party had not been in-
dicted, no warrant or committal for such supi^osed crime would make him
guilty 'within the statute, by breaking the prison ; his imprisonment being
unjustifiable. And though a felony were committed, yet if there were no
just cause of suspicion either to arrest or commit the party, his breaking the
prison will not be felony if the warrant or order of committal is not in
such form as the law requires ; because the lawfulness of his imprison-
ment in such case depends wholly on the warrant, &c. ; but if the party
were taken up for such strong causes of suspicion as would justify his
arrest and commitment, it seems that it will be felony in him to break
the prison, though he happens to have been committed by an informal
warrant (/).

The crime for which the party must be imprisoned, in order to make
his breaking the prison felony within the meaning of the statute, must be
capital at the time of his breaking the prison (h). But it is not material
whether the offence for which the party was imprisoned were capital at the
time of the passing of the statute, or were made so by subsequent statutes ;
for, since all breaches of prison were felonies by the common law, which
is limited by the statute only in respect of imprisonment for offences
not capital, when an offence becomes capital, it is as much out of the
benefit of the statute as if it had always been so (l).

An offender breaking prison, while it is uncertain whether his offence
will become capital, is highly punishable for his contempt, by fine and
imprisonment (m).

If the crime for which the party is arrested, and with which he is
charged in the commitment is not capital, and the offence is not in fact
greater than the commitment states, breaking the prison will not amount
to felony within the statute (n). And though the offence as expressed in
the commitment is capital, yet if, in the event, it is found not to be capital,
it is difficult to maintain that the breaking of the prison on a commitment
for it can be felony ; as the words of the statute are, ' except the cause
for which he was taken and imprisoned require such a judgment' (n).
On the other hand, if the offence which was the cause of the commitment
is in fact capital but is expressed in the commitment as one less severely
punishable, it is suggested that the breaking of the prison by the party
is felony within the statute (o). It was not material whether the party
who broke prison were under an accusation only, or actually attainted
of the crime charged against him ; for persons attainted, breaking prison,
were as much within the exception of the statute as any others (p).

(i) 2 Hawk. c. 18, ss. 5, 6. 2 Co. Inst, giving his reasons for these conclusions,

590. Sura. 109. 1 Hale, 610, 611. says that no express resolution of the points

(j) 2 Hawk. c. 18, ss. 7, 15 ; c. 16, s. 13 appearing, and that as the authors who

et seq. 2 Co. Inst. 590, 591. Sum. 109. have expounded the statute (see Co Inst

1 Hale, 610, 611. 590, 591 ; Sum. 109, 110 ; 1 Hale, 609)

(k) 2 Hawk. o. 19, s. 25. seem rather to incline to a different opinion,

{I) Ibid. c. 18, s. 13. he will leave these matters to the judgment

(m) Ibid. u. 18, s. 14. of the reader.

(n) See the statute, ante, p. 563. (p) Staundf. c. 32. 2 Hawk. c. 18, s. 16.

(o) 2 Hawk. c. 18, s, 15. Hawkins, after

CHAP, v.] Prison Breaking, 565

A person committed for high treason becomes guilty of felony only,
and not of high treason, by breaking the prison and escaping singly,
without letting out any other prisoner : but if other persons, committed
also for high treason, escape together with him, and his intention in
breaking the prison is to favour their escape as well as his own, he
seems to be guilty of high treason in respect of their escape, because there
are no accessories in high treason; and such assistance given to persons com-
mitted for felony will make him who gives it an accessory to the felony,
and by the same reasoning a principal in the case of high treason (q).

The breach of the prison within the meaning of the statute must be
actual, and not merely a constructive breaking. Therefore, if the party
go out of a prison without obstruction, the prison doors being open
through the consent or negligence of the gaoler, or if he otherwise escape,
without using any kind of force or violence, he seems to be guilty of a mis-
demeanor only (r ) . But the breaking need not be intentional . Thus where a
prisoner made his escape from a house of correction, by tying two ladders
together, and placing them against the wall of the yard, but in getting
over threw down some bricks which were placed loose at the top (so as
to give way upon being laid hold of), the judges were unanimously of
opinion that this was a prison breach (s). The breaking must be either
by the prisoner himself, or by others through his procurement, or at
least with his privity ; for if the prison is broken by others without his
procurement or consent, and he escapes through the breach so made, it
seems that he cannot be indicted for the breaking, but only for the
escape (t). And the breaking must not be from the necessity of an
inevitable accident happening, without the contrivance or fault of the
prisoner ; as if the prison should be set on fire by accident, and he should
break it open to save his life (u). It seems also that no breach of prison
will amount to felony, unless the prisoner actually escapes {v).

The offence of prison breach differs from those of escape or rescue in
that a party may be arraigned for prison breaking before he is convicted
of the crime for' which he was imprisoned, on the ground that it is not
material whether he is guilty of such crime or not, and that he is punish-
able as a principal offender in respect of the breach of prison (w). But
if the party has been indicted and acquitted of the felony for which he
was committed, he is not to be indicted at common law or under the old
statute afterwards for the breach of prison ; for though, while the
principal felony was untried, it was immaterial whether he were guilty
of it or not, or rather the breach of prison raised a presumption of the
guilt of the principal offence, yet, upon its being clear that he was not

{q) 2 Hawk. o. 18, s. 17. Bensted's case, does escape accordingly, this is felony, not

Cro. Car. 583 ; 79 E. R. 1101. Limerick's only in the stranger who broke the prison,

case, Kel. (J.) 77. but also in the prisoner that escapes by

{r) 1 Hale, 611. 2 Co. Inst. 390. means of this breach, as he consents to the

(«) R. V. Haswell (1821). R. & R. 458, breach of the prison by taking advantage

Richardson, J., thought that if this had of it.

been an escape only, it would not have been («) 1 Hale, 611. Sum. 108. 2 Co. Inst,

felony. 590.

(«) 2 Hawk. c. 18, s. 10. In Pult. de («) 2 Hawk. c. 18, s. 12.

Pac. 1476, pi. 2, it is said, that if a stranger (w) 2 Co. Inst. 592. 1 Hale, 611. 2

breaks the prison, in order to help a priso- Hawk. c. 18, s. 18.
ner committed for felony to escape, who

566 Of Offences against the Administration of Justice, [book vii.

guilty of the felony, lie is in law as a person never committed for felony ;
and so his breach of prison is no felony (x).

An indictment for breach of prison, in order to bring the offender
within the statute, must specially set forth his case in such manner that
it may appear that he was lawfully in prison, and for such a crime as
requires judgment of hfe or member ; and it is not sufficient to say in
general ' that he feloniously broke prison ' (y) ; as there must be an
actual breaking to constitute the offence (z). It is necessary that such
breaking be stated in the indictment (a).

The offence of prison breaking and escape, by a party lawfully
committed for treason or felony, is a felony (b) ; but was clergyable even
when the felony for which the party was committed was not clergyable (c).
It is now punishable under 7 & 8 Geo. IV. c. 28, s. 8 (d). In this the
offence differed from a voluntary escape, which is punishable in the
same degree as the offence for which the party suffered to escape was in
custody (e). Where the prison breaking is by a party lawfully confined
upon charge of misdemeanor, it is punishable as a misdemeanor, by fine
and (or) imprisonment (/).

The prisoner was found guilty upon an indictment, which charged
that he had been convicted (</) of felony, and sentenced to death ; but
had received a pardon on condition (h) of being imprisoned with hard
labour in the house of correction for two years : that he was committed
to and confined in a house of correction ; and that before the expiration
of the two years, he did feloniously break the said house of correction,
and make his escape out of it, and go at large. This was held to be
punishable as a common-law felony by imprisonment not exceeding a
year (i), to begin from the passing of the sentence {j).

As to escapes, &c., from convict prisons, see post, p. 573.

(a;) 1 Hale, 612, where it is also said that if from imprisonment under order of a bank-

the party should be first indicted for the ruptcy court, see R. v. Allan, C. & M. 295.

breach of prison, and then be acquitted of (g) Certificates of the former conviction

the principal felony, he may plead that were at one time not admissible in evidence,

acquittal of the principal felony, in bar to R. v. Smith, East. T. 1788. MS. Bayley, J.

the indictment for the breach of prison. And neither the production of the calendar

In R. V. Waters, 12 Cox, 390, W. was given of the sentences signed by the clerk of

into custody without a warrant on a charge assize, and by him delivered to the gover-

of felony. He was conveyed before a nor of the prison, nor the evidence of a

magistrate, who remanded him in custody person who heard sentence passed, was

without any evidence on oath. W. was sufficient to prove that a prisoner is in

removed to a lock-up from which he lawful custody under a sentence of im-

escaped. The charge of felony made prisonment passed at the assizes ; the

against him was dismissed by the magis- record itself had to be produced ; or

trates. Martin, B., held that the dismissal other proof as provided by statute,

by the magistrates was not equivalent to R. v. Bourdon, 2 C. & K. 366, Maule.

an acquittal by a jury, that the defendant J. It would seem that the conviction

was legally in custody, although no evi- can now be proved under 34 & 35 Vict,

dence was taken upon oath to justify his c. 112, s. 18, post, Bk. xiii. tit. ' Evidence.'

remand, and that these facts were no de- It is, of course, also necessary to prove that

fence to the indictment for breaking prison, the prisoner was in prison, and that the

(j/) 2 Hawk. c. 18, s. 20. {z) Ante, p. 565. sentence had not been served or reduced.

(a) R. V. Burridge, 3 P. Wms. 483 ; (h) Vide ante, p. 252.

Staundf. 31a. 2 Co. Inst. 589 et seq. (i) See 1 & 2 Geo. IV. c. 88, s. 1, post, p. 568

(i) Ante, p. 563. (c) 1 Hale, 612. (;) R. v. Haswell, R. & R. 458. The

{d) Vide ante, p. 246. As to imprison- Court also held that the prisoner might, if

ment, vide ante, p. 212. it was thought right, be also whipped three

(e) Ante, p. 556. times in addition to tjie imprisonment,

[/) 2 Hawk. c. 18, d. 21. As to escape Vide ante, p. 215,

( 566a )

CANADIAN NOTES.

OF PRISON BEEAKING.

Prison Breach. — Code see. 187.

Attempts to Break Prison. — Code see. 188.

The expression "prison" includes any penitentiary, common gaol,
public or reformatory prison, lock-up, guard room or other place in
which persons charged with the commission of ofEences are usually kept
or detained in custody. Sec. 2(30).

( 567 )

CHAPTER THE SIXTH.

RESCUE AND AIDING ESCAPE FROM CUSTODY.

Rescue, or the offence of forcibly and knowingly freeing another from
arrest or imprisonment is, in most instances, of the same nature as
prison hreaJcing (a).

Where a prison is such that the party himself would, by the common
law, be guilty of felony in breaking from it, a stranger would be guilty of
felony in rescuing him from it, But though, upon the principle that
wherever the arrest of a felon is lawful rescue of him is a felony, it is
not material whether a person arrested for felony, or suspicion of felony,
is in the custody of a private person or of an officer ; yet if he is in the
custody of a private person, it seems that the rescuer should be shewn to
have knowledge of the prisoner being under arrest for felony (h). Where
the imprisonment is so far groundless or irregular, or for such a cause,
or the breaking of it is occasioned by such a necessity, &c., that the party
himself breaking the prison is, either by the common law or by 23 Edw, I,
De frangentibus prisonam (e), saved from the liability to capital punish-
ment, a stranger who rescues him from such an imprisonment is, in like
manner, also excused (d),

A stranger who rescues a person committed for and guilty of high
treason, knowing him to be so committed, is gmlty of high treason (e),
whether he knew that the party rescued were guilty of high treason
or not : and he would, in like manner, be guilty of felony by rescuing a
felon, though he knew not that the party was imprisoned for felony (/).

As the prisoner himself seems not to be guilty of felony by breaking
prison, unless he actually goes out of it (g), the breaking of a prison by a
stranger, in order to free the prisoners who are in it, is said not to be
felony, unless some prisoner actually by that means gets out of prison (A),

A person cannot be tried for felonious rescue except on indictment.
The sheriff's return of rescue is not enough {i).

(a) Ante, p. 563. says that this opinion ia not proved by the

(6) 1 Hale, 606. authority of the case (Y. B. I Hen. VI. 5)

1 Edw. II. stat. 2. sted's case is spoken of in R. v. Burridge,

{d) 2 Hawk. c. 21, ss. 1, 2. 2 Co. Inst. 3 P. Wms. 469, as having been cited and

589. Staundf. 30, 31. allowed to be law at an assembly of all th©

(e) 2 Hawk. c. 21, s. 7. Staundf. 11, 32. then judges of England, except the Chief

Sum. 109. 1 Hale, 237. As to breaking Justice of the Common Pleas, in Limerick's

prison, see ante, p. 563. case, Kel. (J.) 77.

if) Bensted's case, Cro. Car. 583 ; 79 [g] Ante, p. 565.

E. R. 1101, where it is said that it was so [h) 2 Hawk. c. 18, a. 12 ; c. 21, s. 3.

resolved by ten of the judges. And see (i) 1 Hale, 606.

1 Hale, 606. But Hawkins (c. 21, s. 7)

568 Of Offences against the Administration of Justice, [book vii.

It was considered that he who rescued a person for felony could not
be arraigned for such offence as a felony until the principal offender
had been attainted (/). But it is said that he might be immediately
proceeded against for a misdemeanor (k). If the prisoner were acquitted
or convicted of a non-capital offence, the rescuer could not be indicted
for felony, but could be convicted of misdemeanor and subjected to fine
and imprisonment or either (I).

The indictment for a rescue, like that for an escape (m) or for breaking
prison (n), should specially set forth the nature and cause of the imprison-
ment, and the special circumstances of the fact in question (o). And
the word ' rescued ' (rescussit), or something equivalent to it, must be
used to shew that it was forcible and against the will of the custodian
of the prisoner (p).

Punishment. — The rescue of one in custody for felony, or suspicion of
felony, is felony (q). At common law the rescue of a person under commit-
ment for burglary (then a transportable offence) was punishable only as
a felony within clergy (r). By the Eescue Act, 1821 (1 & 2 Geo. IV. c. 88),
s. 1, 'if any person shall rescue, or aid and assist in rescuing, from the
lawful custody of any constable, officer, head-borough, or other person
whomsoever, any person charged with, or suspected of, or committed
for any felony, or on suspicion thereof, then if the person or persons so
offending shall be convicted of felony, and be entitled to the benefit of
clergy, and be liable to be imprisoned for any term not exceeding one
year (s), it shall be lawful for the Court, by or before whom any such
person or persons shall be convicted, to order and direct, in case it shall
think fit, that such person or persons, instead of being so fined and
imprisoned as aforesaid, shall be transported beyond the seas for seven (t)
years, or be imprisoned only, or be imprisoned and kept to hard labour
in the common gaol, house of correction, or penitentiary house, for any
term not less than one and not exceeding three years ' (u).

Where the party rescued is in custody for misdemeanor, the rescuer
will be punishable as for a misdemeanor ; for, as those who break prison
are>guilty only of misdemeanor, punishable by fine and imprisonment,
in cases wherein they are saved from judgment of death by 23 Edw. I. De
frangentibus prisonam, those who rescue such prisoners in the hke cases
are punishable in the same manner (v). Where a prisoner was indicted
for a misdemeanor in aiding and assisting in the rescue of a person,
apprehended and in custody under the warrant of a justice of peace,

(?) See ante, p. 560, note (}). It is levied, &c., and that the defendant rescued

doubtful whether the old rule has not lapsed them, is not sufficient,
with the change of the law as to the trial of (p) R. v. Burridge, 3 P. Wms. 484.

accessories, ante, p. 130. The rule as to (g) Rescue was clergyable even when the

rescue of traitors was different, all being offence of the prisoner was not. 1 Hale,

accessories in treason. 607.

(7c) 2 Hawk. c. 21, s. 8. (r) R. v. Stanley, R. & R. 432.

{I) 1 Hale, 598, 599. («) See R. v. Haswell, ante, p. 566.

(ot) Ante, p. 555. (() Now penal servitude for three to

(n) Ante, p. 567. seven years. Vide 54 & 55 Vict. u. 69, s. 1,

(o) 2 Hawk. c. 21, s. 5. In R. v. West- ante, pp. 211, 212.
bury, 8 Mod. 357, it was holden that an (a) See 54 & 55 Vict. c. 69, s. 1, ante,

indictment for a rescue of goods levied pp. 211, 212. 9 & 10 Vict. c. 24 s. 1

must set forth the ;^en' /acios at large ; and which affected 1 & 2 Geo. IV. c. 88, s. l'

that setting forth quod cum virtute brevis, was repealed in 1892 (S. L. R.).
(fee, de fieri facias, and a warrant thereon be (v) 2 Hawk. c. 21, s. 6. 4 Bl. Com, 130.

CHAP. VI.] Of Aiding an Escape. 569

granted upon a certificate of the clerk of the peace o± the county, reciting
that a true bill for misdemeanor had been found against the party appre-
hended, and it was objected that the warrant was illegal, as justices of
peace had only authority to issue warrants upon oath made of the facts,
which authorised the issuing such warrants (w), it was held that the
warrant was legal, and that the prisoner was guilty of a misdemeanor,
in assisting in the rescue of the person apprehended under it (x).

It was a misdemeanor at common law to aid a person to escape from
custody, who was confined under the remand of Commissioners for the
Relief of Insolvent Debtors, and not on any criminal charge (y).

The rescue of a prisoner committed by the judges of any of the
superior Courts is said to be a great misprision ; for which the party and
the prisoner (if assenting) will be liable to be punished by imprisonment
for life, forfeiture of lands for life, and forfeiture of goods and chattels,
though no stroke or blow was given (z).

Aiding and assisting a prisoner to escape out of prison, by whatever
means it may be effected, is an offence of a mischievous nature, and an
obstruction to the course of justice : and the assisting a felon in making
an actual escape, is felony (a). In a case which underwent elaborate
discussion, the Court of King's Bench held, that a person who assisted
the escape from prison of a prisoner who had been convicted of felony
within clergy, and, having been sentenced to be transported for seven
years, was in custody under such sentence, was an accessory after the
fact to the felony (b). The Court proceeded upon the ground that one
so convicted of felony, within the benefit of clergy, and sentenced to be
transported for seven years, continued a felon till actual transportation
and service pursuant to the sentence ; and that the assistance given
amounted, in law, to receiving, harbouring, or comforting, such felon (c).
But they held the indictment to be defective, in not charging that the
defendant knew that the principal was guilty, or convicted, of felony (d).
The offence of aiding a prisoner to escape out of prison appears also to
have been considered as an accessorial offence in cases of piracy (e).

By the Prison Escape Act, 1742 (16 Geo. II. c. 31), s. 3 (/), it is enacted

(w) This form o£ warrant is now clearly ceipt to make a man an accessory after the
" under 11 & 12 Vict. c. 42, s. 3. fact. Ante, p. 126.

{x) R. V. Stokes, Stafford Sum. Ass. 1831, (d) 3 P. Wms. 492. The prisoner was

Park and Patteson, JJ. 5 C. & P. 148, and charged upon a second indictment as an ac-

MSS. C. S. 6. cessory, knowing the principal to have been

(y) R. V. Allan, C. & M. 295, Erskine and under sentence of transportation ; and was

Wightman, JJ. tried upon this second indictment, con-

(z) 1 East, P. C. 408, 410. Bac. Abr. tit. victed, and sentenced to be transported, id.

' Rescue ' (C). 3 Co. Inst. 141. Y. B. 22 499, 503. But such sentence was not war-

Edw. III. 13. ranted by law. See R. v. Stanley, R. & R.

(a) R. V. TiUey, 2 Leach, 671. 432.

lb) R. V. Burridge, 3 P. Wms. 439. (e) K. v. Scadding, Yelv. 134. 1 East,

(c) The assistance was not particularly P. C. 810.
specified in the special verdict ; the state- ( / ) Ss. 1, 2 of this Act were repealed in
ment was, that the defendant (who was 1823 (4 Geo. IV. c. 64, s. 1), so far as they
confined in the same gaol with the party related to prisons to which that Act applied,
whom he assisted to escape) ' did wilfully The Act of 1823 (repealed by the Prison
aid and assist the said W. P., so being in Act, 1865 (28 & 29 Vict. c. 126, s. 73)) did
custody as aforesaid, to make his escape not apply to Bethlehem Hospital or Bride-
out of the said gaol.' But any assistance well, nor to Millbank and Gloucester Peni-
given to one known to be a felon, in order tentiaries, nor to ships or vessels provided
to hinder his suffering the punishment to for the reception and employment of con-
whioh he is condemned, is a sufficient re- victs sentenced to transportation. 5 Geo.

570 Of Offences against the Administration of Justice, [book vii.

that ' If any person shall aid or assist any prisoner to attempt to make
his or her escape from the custody of any constable, head-borough,
tithingman, or other officer or person who shall then have the lawful
charge of such prisoner, in order to carry him or her to gaol, by virtue
of a warrant of commitment for treason, or any felony (except petty
larceny) (g), expressed in such warrant ; or if any person shall be aiding
or assisting to any felon to attempt to make his escape from on board
any boat, ship, or vessel, carrying felons for transportation, or from
the contractor for the transportation of such felons, his assigns or agents,
or any other person to whom such felon shall have been lawfully delivered,
in order for transportation ' ; every person so offending, and being
convicted, shall be deemed and adjudged to be guilty of felony, and be
transported for the term of seven years (h).

Sect. 4. ' Provided always, that there shall be no prosecution for any
of the said offences, unless such prosecution be commenced within one
year after such offence committed/

By the Murder Act, 1751 (25 Geo. II. c. 37), s. 9 (i), ' If any person or
persons whatsoever shall by force set at liberty, or rescue, or attempt to
rescue or set at liberty, any person out of prison who shall be committed
for or found guilty of murdef , or rescue, or attempt to rescue, any person
convicted of murder going to execution, or during execution, every person
so offending shaU be deemed, taken, and adjudged to be guilty of felony' (j).

By the Criminal Lunatic Asylums Act, 1860 (23 & 24 Vict. c. 75),
s. 12, ' any person who rescues any person ordered to be conveyed to any
asylum for criminal lunatics during the time of his conveyance thereto
or of his confinement therein, and any officer or servant in any asylum
for criminal lunatics who through wilful neglect or- connivance permits
any person confined therein to escape therefrom (jj), or secretes, or abets
or connives at the escape of any such person, shall be guilty of felony,
and being convicted thereof shall be liable to be kept in penal servitude
for any term not exceeding four years (k), or to be imprisoned for any
term not exceeding two years, with or without hard labour, at the dis-
cretion of the Court ; and any such officer or servant who carelessly
allows any such person to escape as aforesaid shall, on summary conviction
before two justices of such offence, forfeit any sum not exceeding twenty
pounds nor less than two pounds.'

IV. u. 84, s. 1 ; 0. 85, s. 27. Of tlie ex- 54 & 55 Viot. c. 09, s. 1, ante, pp. 211, 212.

cepted prisons, Millbank and Gloucester, (i) Rep. in 1828 (9 Geo. IV. u. 31, s. 1),

the King's Bench, Fleet, Marshalsea, and ' except so far as relates to rescues and

Palace Court Prisons have ceased to exist, attempts to rescue.' Sect. 10 was repealed

Since the abolition of transportation, hulks in 1867. S. L. R.

are not used. The present Bethlehem (j) The punishment of death was abol-

Hospital is not on the site of the old hospital, ished and transportation (now penal servi-

arid is not used as an asylum for criminal tude) for life substituted (7 Will. IV. & 1

lunatics, and Bridewell is used only for Vict. o. 91, s. 1). For other punishments,

apprentices. The repeal of 4 Geo. IV. see 54 & 55 Vict. c.69,s.l, ante, pp.211, 212,

c. 64, and 5 Geo. IV. c. 85, by 28 & 29 Viot. 247.

c. 126, does not revive legislation repealed (jj) A like provision as to institutions

by those Acts. Vide ante, p. 5. for ordinary lunatics is made by 53 & 54

(g) Merged in larceny. 24 & 25 Vict. Vict. c. 5, s. 323.

c. 96, s. 2, post, Vol. ii. p. 1177. (k) Nor less than three years. Qucere,

[h) Now penal servitude from three to whether the maximum is increased to five

seven years, or imprisonment with or with- years, vide ante, p. 211.
put hard labour for not more than two years.

CHAP. VL] Of Aiding an Escape. . 571

Naval and Military Prisons.— The Naval Discipline Act, 1866 (29 &
30 Vict. c. 109), ss. 70, 82 (I), imposes penalties on persons aiding escape
or attempts to escape from a naval prison (m). These provisions are
not limited to the United Kingdom.

The Army Act (n) provides for the punishment on conviction by-
court-martial of persons subject to military law who wilfully, and without
proper authority, release, or wilfully or without reasonable excuse allow
the escape of prisoners in their custody or charge (s. 20), or who being in
lawful custody escape or attempt to escape (s. 22) (o).

Local Prisons.— By the Prison Act, 1865 (28 & 29 Vict. c. 126), s. 37,
' Every person who aids any prisoner in escaping or attempting to escape
from any prison, or who, with intent to facilitate the escape of any
prisoner, conveys or causes to be conveyed into any prison any mask,
dress, or other disguise, or any letter, or any other article or thing (p),
shall be guilty of felony, and on conviction be sentenced to imprison-
ment with hard labour for a term not exceeding two years ' (q).

This section is not limited to criminal prisoners, i.e., prisoners ' charged
with or convicted of crime ' (s. 4) {r).

Certified Reformatories, &c. — Escaping or aiding escape from reforma-
tories and industrial schools is punishable on summary conviction (8 Edw.
VII. c. 7, s. 72). As to aiding the escape of prisoners being conveyed
under the Fugitive Offenders Act, 1881, see 44 & 45 Vict. c. 69, ss. 25, 28.

The following decisions on the superseded but similar Acts of 1742 and
1823 may be of value in construing sect. 37 of the Act of 1865. The
Act of 1742 only applied where an escape was actually made (s), and
was limited to escapes of prisoners committed to or detained in prison,
for treason or felony plainly expressed in the warrant of commitment (t).

Delivering instruments to a prisoner, to facilitate his escape from
prison, was within the Act of 1742, though the prisoner had been pardoned
for the offence of which he was convicted, on condition of transporta-
tion (m). And a prisoner was within the Act, though there be no evidence
that he knew of what specific offence the person he assisted had been
convicted (v).

[1) As amended by 47 & 48 Vict. e. 39. or other chief officer of a prison (s. 4),

(m) Penal servitude, three to fourteen ' Prisoner ' is defined for the purposes of

years, or imprisonment with or without the Prison Act, 1877 (40 & 41 Vict. c. 21),

hard labour for not over two years. The as ' any person committed to prison on

prisons are appointed and governed under remand or for trial, safe custody, punish-

s. 81 of the Act of 1866, as amended by 47 ment, or otherwise.' The Act applies (s. 3)

& 48 Vict. c. 39. to all prisons belonging to a prison author-

(m) 44 & 45 Vict. c. 58. ity as defined by the Act of 1865. The

(o) See Manual of Military Law (ed . definition of ' prisoner ' is wide enough to

1907), c. iv. include penal servitude prisoners for the

(p) A crowbar is an article or thing time being detained in a local prison,

within this section. B. v. Payne, L. R. 1 (r) Connivance for reward at the escape

C. C. B. 27. from prison of a person in civil custody

(q) This Act does not extend to Scotland entails liabihty on the gaoler to loss of office,

or Ireland, or convict prisons, or any mUi- inabihty to serve again, and a penalty of

tary or naval prison (s. 3). ' Prison ' £500. 8 & 9 Will. III. c. 27, s. 4.

shall mean gaol, house of correction, bride- («) B. v. Tilley, 2 Leach, 662.

well, or penitentiary ; it shall also include (i) B. v. Greenif, 1 Leach, 363. B. v.

the airing grounds, or other grounds or Gibbon, 1 Leach, 98, note (a).

buildings occupied by prison officers, for (a) B. v. Shaw, B. & B. 125, 526.

the use of the prison and contiguous there- (v) Ibid. An indictment at common law

to. ' Gaoler ' shall mean governor, keeper^ for aiding a prisoner's escape should st^te

572 Of Offences against the Administration of Justice, [book vii.

When the record of the conviction of the prisoner, whose escape was
to have been efEected, had been produced by the proper officer, no evidence
was admissible to contradict what it stated ; nor to shew that it had never
been filed among the records of the county ; notwithstanding that the
indictment referred to it with a -prout patet as remaining amongst those
records (w).

Where a count stated that the gaol thereinafter mentioned, situate
at the parish of the Holy Trinity, in C, in the county of W., was a gaol
to which the provisions of 4 Geo. IV. c. 64 (x) extended, and that one
T. was a prisoner in the said gaol, and that the defendant, at the parish
aforesaid, feloniously did aid and assist T., then and there being such
prisoner, in attempting to escape from the said gaol ; it was held on
error that the count was good, though it did not allege the means by
which the defendant aided T. in attempting to escape, and though it did
not allege in direct terms that T. did attempt to escape (y). Another
count stated that T., being a prisoner in the said gaol, so situate as afore-
said, was meditating and endeavouring to effect his escape from the
said gaol, otherwise than by due course of law, and in order thereto had
procured a key to be made with intent to effect his escape by mearis
thereof, and had made to the defendant, then being a turnkey of the
said gaol, overtures to induce him to aid him to escape from the said
gaol, and so was endeavouring to procure his escape from the said gaol,
and that the defendant whilst T. was such prisoner in the said gaol at
the parish aforesaid, &c., feloniously did procure and receive into his
possession the said key, being adapted to and capable of opening divers
locks in the said gaol, with intent thereby to enable T. to escape from
the said gaol, and so the jurors said that the defendant at the parish
aforesaid feloniously did aid and assist T. in attempting to escape from
the said gaol ; and it was held that the introductory part of the count
stated an attempt to escape and the means used with sufficient particu-
larity, and sufficiently shewed an offence within 4 Geo. IV. c. 64, and
that the count was not bad for want of a more particular venue to the
acts charged in the introductory part as an attempt by T. to escape,
and that the count was not double (2). It was also held, that the general
averment of the gaol being a gaol to which the provisions of 4 Geo. IV. c. 64
applied was sufficient, without shewing how it came within them, and
that it was not necessary to shew more particularly that the gaol was a
gaol for the county within 5 & 6 Vict. c. 110, s. 2 (a). It was further
held, that aiding an escape was a substantive offence under 4 Geo. IV.
c. 64, s. 43 (rep.), and therefore the count was not bad in charging the
accessory without including the principal or alleging that he had been
convicted, and at all events such an objection was too late after the
trial (6). It was also held, that it was not necessary to shew that the
prosecution was commenced within a year after the offence, as required
by sect. 4 of the Act of 1742 (c).

that the party knew of his offence. R. v. (z) Ibid.

Young, Trin. T. 1801, MS. Bayley, J. (a) Repealed.

(w) R. V. Shaw, supra. (fc) HoUoway v. R., ubi supra.

(x) Rep. 1865 (28 & 29 Vict. c. 126, s. 73). (c) Ante, pp. 569, 570. HoUoway v. R.,

(y) HoUoway v. R., 17 Q.B. 317. ubi supra.

( 5T2a )

CANADIAN NOTES.

RESCUE AND AIDING ESCAPE.

Rescue of Person under Sentence of Death or for Life. — Code
sec. 191.

Rescue of Person under Other Sentence. — Code sec. 192.

Aiding Escape iy Conveying Things into Prison. — Code sec. 194.

Causing Discharge of Prisoners by Pretended Authority. — Code
sec. 195.

Remainder of Term. — Code sec. 196.

( 573 )

CHAPTER THE SEVENTH.

OF ESCAPE OE BEING AT LARGE, WHILE UNDER SENTENCE OE PENAL
SERVITUDE ; AND OP RESCUING OR AIDING THE ESCAPE OP PERSONS
UNDER SUCH SENTENCE.

On the substitution of penal servitude for transportation (a), certain of
the legislation as to transportation was applied mutatis mutandis to
persons under sentence of penal servitude.

The Transportation Act, 1847 (10 & 11 Vict. c. 67), s. 2, authorises
the removal of persons under sentence or order of transportation within
Great Britain from the prison in which they are confined to any other of
His Majesty's prisons in England (6).

By the Convict Prisons Act, 1850 (13 & 14 Vict. c. 39), power is given
to a Secretary of State to appoint not less than three fit persons as directors
of Parkhurst and Pentonville Prisons, and of the places for the confine-
ment of male offenders under sentence or order of transportation. The
directors so appointed took over the powers and duties in England of
the superintendent of convicts under the Act of 1824, and of the visitors
of Parkhurst Prison (c), and the commissioners of Portland (d).

The Convict Prisons Act, 1853 (16 & 17 Vict. c. 121), extends to females
the provisions of the Act of 1824, as to places of confinement for males (e).

By the Prison Act, 1898 (61 & 62 Vict. c. 41), s. 1, the Prison Commis-
sioners appointed under the Prison Act, 1877, for local prisons were
made virtute officii directors of convict prisons.

By the Penal Servitude Act, 1853 (16 & 17 Vict. c. 99), s. 6, ' Every
person who under this Act shall be sentenced or ordered to be kept in
penal servitude may, during the term of the sentence or order, be con-
fined in any such prison or place of confinement in any part of the United
Kingdom, or in any river, port, or harbour of the United Kingdom, in
which persons under sentence or order of transportation may now by
law be confined, or in any other prison in the United Kingdom, or in
any part of his Majesty's dominions beyond the seas, or in any port or
harbour thereof, as one of his Majesty's principal secretaries of state may
from time to time direct ; and such person may during such term be
kept to hard labour and otherwise dealt with in all respects as persons

(a) By 16 & 17 Vict, c, 99, and 20 & 21 invalid and weak-minded convicts.

Vict. c. 3, ante, p. 210. As to transporta- (d) Escape and rescue from Pentonville

tion, vide ante, p. 209. is specially punishable under 5 & 6 Vict.

(6) The Act also deals with the removal c. 29, ss. 24,25,28. The prison is not now

from Ireland of male offenders sentenced to used as a convict establishment.

' transportation.' (e) The Act recites 5 Geo. IV. c. 84 ; 9 &

specially punishable under 1 & 2 Vict. c. 82, c. 39, supra.
ss. 12, 13, 14. The prison is now used for

574 Of Offences against the Administration of Justice, [book vn.

sentenced to transportation may now by law be dealt with while so
confined.'

Sect. 7. ' All Acts and provisions of Acts now applicable with respect
to persons under sentence or order of transportation shall, so far as may
be consistent with the express provisions of this Act, be construed to
extend and be applicable to persons under any sentence or order of
penal servitude under this Act ; and all the powers and provisions con-
tained in the Transportation Act, 1824 (5 Geo. IV. c. 82), authorising the
appointment by his Majesty from time to time of places of confinement as
therein mentioned for male offenders under sentence or order of transpor-
tation, and authorising his Majesty to order male offenders convicted in
Great Britain and under sentence or order of transportation to be kept to
hard labour in any part of his Majesty's dominions out of England, shall
extend and be applicable to and for the appointment by his Majesty of
like places of confinement in any part of the United Kingdom for offenders
(whether male or female) sentenced under this Act in any part of the
United Kingdom, and to and for the ordering of such offenders to be
kept to hard labour in any part of his Majesty's dominions out of England ;
and all the provisions of the said Act concerning the removal to or from
and confinement in the places of confinement in or out of England,
appointed under the said Act, of the offenders therein mentioned, and
all Acts and provisions of Acts now in force concerning or relating to the
regulation and government of such places of confinement, and the
custody, treatment, management, and control of or otherwise in relation
to the offenders confined therein, shall, so far as the same may be con-
sistent with the express provisions of the Act, extend and be applicable
to and for the removal to and from and confinement in the places of
confinement appointed under this Act of the offenders sentenced in any
part of the United Kingdom, and otherwise be applicable to and in respect
of such places of confinement and the offenders to be confined therein ' (/).

The Penal Servitude Act, 1857 (20 & 21 Vict. c. 3), s. 3, after reciting
that the provisions applicable to persons under sentence of transportation
extend to persons under penal servitude only when they are conveyed
to and kept in places of confinement appointed under the Transportation
Act, 1824, and that it is expedient to extend the provisions, enacts that
' any person now or hereafter under sentence or order of penal servitude
may, during the term of the sentence or order, be conveyed to any place
or places beyond the seas to which offenders under sentence or order of
transportation may be conveyed, or to any place or places beyond the
seas which may be hereafter appointed as herein mentioned ; and all
Acts and provisions now applicable to and for the removal and transporta-
tion of offenders under sentence or order of transportation to and from
any places beyond the seas, and concerning their custody, management,
and control, and the property in their services, and the punishment of
such offenders if at large without lawful cause before the expiration of
their sentence, and all other provisions now applicable to and in the case
of persons under sentence or order of transportation, shall apply to and

(/) All powers of a secretary of state are Lieutenant (s. 8). For ss. 9, 10, 11, see
in Ireland to be exercised by the Lord ante, p. 219.

CHAP. VII.] Escape while under Sentence of Penal Servitude. 575

in the case of persons under sentence or order of penal servitude, as if
they were persons under sentence or order of transportation ' [g).

Sect. 6. ' Where in any enactment now in force the expression " any
crime punishable with transportation," or " any crime punishable by
law with transportation," or any expression of the like import, is used,
the enactment shall be construed and take effect as applicable also to any
crime punishable with penal servitude '{h).

Army and Navy. — By sect. 58 of the Army Act {i), when a person
subject to military law is convicted by court-martial and sentenced to
penal servitude, such conviction and sentence shall have the same effect
as if such person had been convicted in the United Kingdom of an offence
punishable by penal servitude and sentenced to penal servitude by a
competent civil court, and ' all enactments relating to a person sentenced
to penal servitude by a competent civil court shall so far as circumstances
admit apply accordingly.' By the Naval Disciphne Act (/), like pro-
vision is made as to persons subject to naval discipline.

The following portions of the Transportation Acts with respect to
the escape of convicts appear to be apphed by the Acts of 1853 and 1857 :

By the Transportation Act, 1824 (5 Geo. IV. c. 84), s. 15, offenders
removed under the Act are put in the custody of a superintendent and
overseer, who during the term of his custody have ' the same powers
over him as are incident to the office of a sheriff or gaoler, and shall in
hke manner be answerable for any escape of such offender ' {h).

By sect. 22, ' If any offender who shall have been or shall be so sen'
tenced or ordered to be transported or banished (Z), or who shall have
agreed or shall agree to transport or banish himself or herself on certain
conditions (m), either for life or any number of years, under the provisions
of this or any former Act, shall be afterwards at large within any part
of his Majesty's dominions, without some lawful cause, before the expira-
tion of the term for which such offender shall have been sentenced or
ordered to be transported or banished, or shall have so agreed to trans-
port or banish himself or herself, every such offender so being at large,
being thereof lawfully convicted, shall suffer death, as in cases of felony,
without the henejit of clergy (n) : and such offender may be tried either in
the county or place where he or she shall be apprehended, or in that from
whence he or she was ordered to be transported or banished ; and if any

(g) For s. 4, vide -post, p. 577. S. 5 deals R. & R. 512. As to terms of pardon, vide

withthere-oommitmentof convicts at large ante, Tp. 252.
under licence if their licences are revoked. (») The words italicised were repealed

(h) See enactments as to penal servitude, by 4 & 5 Will. IV. c. 67, which substituted

ante, pp. 210, 211. transportation for life. Penal servitude

(i) 44 & 45 Vict. c. 58, continued an- was substituted for transportation in 1853

nually by the Army Annual Act. and 1857 {vide ante, p. 210). The present

(?) 29 & 30 Vict. c. 109, s. 70, as amended punishment under s. 22 is penal servitude

by 47 & 48 Vict. c. 39, ss. 3, 7. As to for life, or not less than three years, or

' escapes,' &c., see 29 & 30 Vict. c. 109, s. 62. imprisonment with or without hard labour

(i) Videante,-p. 556. The duties of super- for not more than two years (54 & 55 Vict,

intendent are now vested in the directors of c. 69, s. 1, ante, pp. 211, 212). See R. v.

convict prisons, 13 & 14 Vict. c. 39, s. 1. Lamb, 3 C. & K. 96. 4 & 5 Will. IV.

(l) Transportation is superseded by c. 67, except as to the maximum (life), was

penal servitude. As to banishment, vide repealed in 1888 and 1892 (S. L. R.). The

ante, p. 208. punishment of accessories before and after

(m) As to fatal variance in describing the fact is regulated bytheAccessories, &c.,

conditions of mercy, see R. v. Ktzpatriok, Act, 1861, ante, p. 130.

576 Of Offences against the Administration of Justice, [book vii.

person shall rescue, or attempt to rescue, or assist in rescuing or attempt-
ing to rescue, any such offender from the custody of such superintendent
or overseer, or of any sheriff or gaoler, or other person conveying,
removing, transporting, or reconveving him or her, or shall convey, or
cause to be conveyed, any disguise, instrument for efJecting escape, or
arms, to such offender, every such oSence shall be punishable in the same
manner as if such offender had been confined in a gaol or prison, in the
custody of the sherifi (o) or gaoler, for the crime of which such offender
shall have been convicted ; and whoever shall discover and prosecute
to conviction any such offender so being at large within this kingdom,
shall be entitled to a reward of twenty pounds for every such offender
so convicted ' (p). The word ' feloniously ' is essential in an indictment
under this section {q).

By sect. 23, ' In any indictment against any offender for being found
at large, contrary to the provisions of this or of any other Act now made,
or hereafter to be made ; and also in any indictment against any person
who shall rescue, or attempt to rescue, or assist in rescuing, any such
offender from such custody, or who shall convey, or cause to be conveyed,
any disguise, instrument for effecting escape, or arms, to any such offender,
contrary to the provisions of this or of any other Act now made, or here-
after to be made, whether such offender shall have been tried before any
Court or judge, within or without the United Kingdom, or before any
naval or military court-martial, it shall be sufficient to charge and allege
the order made for the transportation or banishment of such offender,
without charging or alleging any indictment, trial, conviction, judgment,
or sentence, or any pardon or intention of mercy, or signification thereof,
of or against, or in any manner relating to such offender.'

By sect. 24, ' The Clerk of the Court or other officer having the
custody of the records of the Court (r), where such sentence or order of
transportation or banishment shall have been passed or made, shall, at
the request of any person on his Majesty's behalf, make out and give a
certificate in writing, signed by him, containing the effect and substance
only (s) (omitting the formal part) of every indictment and conviction
of such offender, and of the sentence or order for his or her transporta-
tion or banishment (not taking for the same more than six shillings and
eightpence), which certificate shall be sufficient evidence of the con-
viction and sentence, or order for the transportation or banishment of
such offender ; and every such certificate, if made by the clerk or officer
of any Court in Great Britain, shall be received in evidence, upon proof
of the signature and official character of the person signing the same {t) ;
and every such certificate, if made by the clerk or officer of any Court

(o) The sherifE has no longer the custody acting as such, and having custody of the

of anyprisonerconfinedinaprisonBubjeetto records. R. v. Parsons, 10 Cox, 243. R.

the Prison Acts. 50 & 51 Vict. o. 55, s. 16. v. Jones, 2 C. & K. 524.

(p) The reward is payable by the county (s) This enactment superseded the simi-

treasurer on the order of the judge before lar but not identical provisions of 6 Geo. I.

whom the conviction takes place. R. v. c. 23 ; 56 Geo. III. c. 27, s. 8, as to which,

Emmons, 2 M. & Rob. 279, Coleridge, J. R. see R. t). Sutcliffe, R. & R. 469, 914. 'R.v.

V. Ambury, 6 Cox, 79. Vide post, Bk. xii. Watson, R. & R. 468. 1 Hawk. o. 47, s. 21.

i;. vi. (() See 8 & 9 Vict. c. 113, s. 1 ; 14 & 15

(}) R. V. Home, 4 Cox, 263, Patteson, J. Vict. o. 99, s. 13 ; 34 & 35 Vict. c. 112, s. 18.

(r) Including a deputy clerk of the peace Post, Bk. xiii. v. ii. ' Evidence.'

CHAP. VII.] Escape while under Sentence of Penal Servitvde. 577

out of Great Britain, shall be received in evidence, if verified by the seal
of the Court, or by the signature of the judge, or one of the judges of the
Court, without further proof ' [u).

In the following cases certificates have been held sufHciently to
comply with the terms of sect. 24.

(a) A certificate stating that the prisoner had been convicted of two
larcenies and sentenced to two several terms of transportation of seven
years each for the said larcenies {v).

(6) A certificate that the prisoner was ' in due form of law convicted
of feloniously and burglariously breaking and entering the dwelling-
house of T. D. and feloniously and burglariously stealing therein one
piece of the current gold coin," &c., and ' was thereupon ordered to be
transported beyond the seas for the term of his natural life ' (w).

(c) A certificate that the prisoner ' at the general quarter sessions of
the peace of our Lady the Queen, holden at M. in the county of K., the
prisoner was in due form of law tried and convicted ' {x).

It would seem that even if the certificate states that a sentence was
imposed in excess of the powers of the Court of trial, the sentence cannot
be treated as a nullity, but must be regarded as valid until quashed or
reversed («/).

There are several decisions as to the effect of pardons {z) conditional
on the convict transporting himself (a). Under the present law a person
sentenced to penal servitude but pardoned on condition of leaving the
realm would seem to be liable to conviction under sect. 22, if he
returned in breach of the conditions.

Prisoners outside the United Kingdom. — The Penal Servitude Act,
1857 (20 & 21 Vict. c. 3), s. 4, preserves the powers of the Transporta-
tion Act, 1824 (6), as to appointing places beyond the seas to which
offenders under sentence or order of penal servitude may be conveyed.
But the powers are not in use as to persons sentenced in the United
Kingdom.

By the Convict Prisons Abroad Act, 1859 (22 Vict. c. 25), ss. 13-19,
provision is made for the trial and punishment of convicts or others
concerned in escapes or rescues. The Act applies to convict prisons at
Bermuda and Gibraltar, and other places appointed by His Majesty
(sect. 2).

The Colonial Prisoners Kemoval Act, 1869 (32 & 33 Vict. c. 10),
provides for the removal of prisoners under sentence from one colony
to another to complete the sentence. The removed prisoner is liable
to the laws and regulations of the colony to which he is removed.

The Colonial Prisoners Removal Act, 1884 (47 & 48 Vict. c. 31),

(u) See also post, Bk. xiii. c. ii. Court of Quarter Sessions for larceny.

\v) R. V. Russell, 1 Cox, 81, Patteson, J. (z) As to pardon, vide ante, p. 252.

(w) E. V. Ambuiy, 6 Cox, 79, Williams, (a) R. v. MUler, 1 Leach, 74 ; 2 W. Bl.

J. Sufficient as to description of the 797. R. o. Madan, 1 Leach, 223. R. v.
sentence Aickles, 1 Leach, 391, 396. R. v. Thorpe,

ibid. 396 a. And see 1 Hawk. u. 47, ss. 22,
23.

(5) See 5 Geo. IV. o. 84, ss. 3, 13 ; 6
Geo. IV. ^. 69, s. 1 ; 11 Geo. IV. & 1 Will.
IV. c. 39, ss. 2, 5 ; 10 & 11 Vict. c. 67, s. 1.

(x) E. V. Home, 4 Cox, 263, Patteson, J
Sufficient as to the description of the Court

(y) R. V. Knney, 2 C. & K. 774, Alder
son, B., who consulted several of the judges
The certificate shewed a sentence of four-
teen years' transportation imposed by a

VOL. r.

578 Of Offences against the Administration of Justice, [book vii.

provides for the removal of prisoners and criminal lunatics from one
colony to another (c) or to the United Kingdom. A punishment is
provided for escape ^sect. 9).

For the Orders in Council made under these Acts as to arrangements
between colonies and the Eegulations of December 13, 1889, as to
removals under the Act of 1884 see Statutory Rules and Orders Revised
(ed. 1904), tit. ' Colonial Prisoner,' and the Colonial Prisoners Removal
Order in Council, 1907 (St. R. & 0. (1907) No. 742).

(c) See^a;parieTilonko, K.B.D. Oct. 12, portation order and warrant issued under
Nov. 25, 1907, 42 L. J. Newsp. 628, 754, s. 2 of the Act of 1884.
unsuccessful applications to quash a de-

(579)

CHAPTER THE EIGHTH.

OF COMPOUNDING OFFENCES.

Agreements not to prosecute or to stifle a prosecution for a criminal
offence are in certain cases criminal («). This offence is distinct from
that of misprision of felony (6).

It was said by Lord Westbury in WiUiams v. Bayley (c), ' If you are
aware that a crime has been committed you shall not convert that crime
into a source of profit or benefit to yourself . . . . Now, that is the principle
of the law and the policy of the law, and it is dictated by the highest
considerations. If men were permitted to trade upon the knowledge of
a crime, and to convert their privity to that crime into an occasion of
advantage, no doubt a great legal and a great moral offence woiild be
committed, and that is what I apprehend the old rule of law intended
to convey when it embodied the principle under the words which have
now somewhat passed into desuetude, viz., misprision of felony. That
was a case where a man, instead of performing his pubUc duty and giving
information to the public authorities of a crime that he was aware of,
concealed his knowledge, and further converted it into a source of
emolument for himself.' In the last words Lord Westbury seems to be
confusing misprision of felony with compounding of felony. That offence
(in the earlier books described as theft-bote) is committed where the party
robbed not only knows the felon, but also takes his goods again, or other
amends, upon agreement not to prosecute {d). It is said to have been
anciently punishable as felony ; but is now punished as a misdemeanor
by fine and (or) imprisonment, unless it is accompanied with such degree
of maintenance given to the felon as to make the party an accessory
after the fact (e). But merely to take back one's own goods which have
been stolen, is no offence at all unless some favour be shewn to the
thief (/).

The offence of compounding a felony applies to all felonies, and is
not limited to larceny.

Where an indictment for compounding felony alleged that after
taking a sum of money for compounding, the defendant desisted from
prosecuting, and it appeared that he did prosecute to conviction, the
defendant was held entitled to be acquitted (g). But an indictment

(o) It is well recognised that agreements (e) L. E. 1 H. L. 200, 220.

not to prosecute a felony or misdemeanor {d) 1 Hawk. c. 59, s. 5. 4 Bl. Com. 133.

are illegal and unenforceable. See Kvaz v. (e) 1 Hawk. c. 59, s. 6. 2 Hale, 400.

Nicholls, 2 C. B. 501. Rawlings v. Coal Vide ante, p. 126.

Consumers' Association, 43 L. J. M. C. 111. (/) 1 Hawk. c. 59, s. 7.

WindhUl Local Board v. Vint, 45 Ch. D. 351. (?) R. v. Stone, 4 C. & P. 379, Bosanquet,

(6) Ante, p. 129. J.

2p2

580 Of Offences against the Administration of Justice, [book vii.

whicli did not allege that the defendant desisted from prosecution has
been held good Qi). The ofEence of compounding a larceny may be com-
mitted by a person other than the owner of the stolen goods or a material
witness for the prosecution {i).

By sect. 101 of the Larceny Act, 1861 (24 & 25 Vict. c. 96) {j), it is
felony to take any reward for helping a person to any property stolen
or obtained by false pretences ; ■ and by sect. 102 to advertise a reward
for the return of things stolen, involves a forfeiture of fifty pounds {k).

Compounding Misdemeanors. — It is not certain whether an agree-
ment to stifle a prosecution for misdemeanor is indictable apart from
conspiracy (?).

An agreement to prevent or put an end to a prosecution for misde-
meanor is void and unenforceable as impeding the course of public
justice (m). It is immaterial whether the agreement is made with the
defendant or with a third party (n). When an indictment has been
found the prosecution may be terminated by nolle prosequi entered by
leave of the Attorney-General, or by leave of the Court (n). Sometimes
after verdict a prosecution is abandoned, with the sanction of the Court,
in cases where the offence principally and more immediately affects an
individual ; the defendant being permitted to speak with the prosecutor
before any judgment is pronounced, and a trivial punishment being
inflicted if the prosecutor declares himself satisfied (o). In a case of an
indictment for iU-treating a parish apprentice, a security for the fair
expenses of the prosecution given by the defendant after conviction,
upon an understanding that the Court would abate the period of his
imprisonment, was held good, upon the ground that it was given with
the sanction of the Court, and to be considered as part of the punishment
suffered by the defendant in expiation of his ofEence, in addition to the
imprisonment inflicted on him (p).

In Keir v. Leeman (q) it was laid down, that ' the law will permit a
compromise of all offences, though made the subject of a criminal prose-
cution, for which offences the injured party might recover damages in
an action.' But it seems that this proposition should be limited to the
' cases where the private rights of the injured party are made the subject
of agreement, and where hj the previous conviction of the defendant
the rights of the pubhc are also preserved inviolate ' (r). For ' when a
verdict of guilty is taken, and the Court suspend judgment, and allow
the questions between the parties to be referred, the matter is very
different, for then it is only to enable the Court the better to see what

{h) R. (. Burgess, 16 Q.B.D. 141. [p) Beeley v. Wingfield, 11 East, 46.

(i) E. V. Burgess, supra. See the observations on this case in Keir v.

{{) Vide post. Vol. ii. p. 1489, ' Larceny. Leeman, 6 Q.B. 320 ; and see also Baker v.

(k) Ibid. Townshend, 7 Taunt. 422 ; and see In re

{!■) See Dillon v. O'Brien, 20 L. R. Ir. Parkinson, 56 L. T. N. S. 715. Kirk v.

316. Steph. Dig. Or. L. (6th ed.) 122. Archb. Striokwood, 4 B. & Ad. 421. But in gene-

Cr. PI. (23rd ed.) 1090, 1091. ral any contract or security made in con-

(m) Windhill Local Board v. Vint, 45 sideration of dropping a criminal proaeou-

Ch. D. 351. Colhns v. Blantern, 2 Wils. tion, suppressing evidence, soliciting a par-

(K.B.) 341. Edgecombe v. Rodd, 5 East, don, or compounding any public offence

294. Cf. Kaufmann v. Gerson [1904], 1 without leave of the Court, is invalid 1

KB. 591. Chit. Cr. L. 4.

(re) See Archb. Cr. PI. (23rd ed.) 1089. (q) 6 Q.B. 308.

(o) 4 Bl. Com. 363, 364. (r) Keir v. Leeman, 9 Q.B. 371, in error.

CHAP.Viii.] Comfounding Offences. 581

sentence ought to be given ' (s). ' But if the offence is of a public nature
no agreement can be vaHd that is founded on the consideration of stifling
a prosecution for it '{t). A contract therefore to withdraw a prosecution
for perjury, and to give no evidence against the accused, is founded
on an illegal consideration and void (m).

So where an action was brought on an agreement, by which the
defendants, in consideration that the plaintiff, being the prosecutor of
an indictment against certain persons for an assault and riot, would not
proceed further on such indictment, promised the plaintiff to pay him
a certain sum of money, and in pursuance of that agreement the plaintiff
did not proceed further with the indictment, and informed the Court,
before which the indictment was pending, of the premises, and, by leave
of the Court, forbore to give evidence upon the indictment, and there-
upon there was an acquittal ; it was held that the agreement was illegal ;
for the offence was not confined to the personal injury, but was accom-
panied with a riot, which was a matter of public concern, and therefore
not legally the subject of compromise (v).

In one case an indictment for a nuisance by making an embankment
in the Thames, whereby the navigation was obstructed, was referred (w) ;
but the question of the legality of the reference was not raised. But
where an indictment had been preferred against the defendant for non-
repair of a highway, which it was alleged he ought to have repaired
ratione tenures ; the prosecutor and defendant before the trial agreed
to leave the question of liability to repair to reference ; the arbitrator
was to make an award on the evidence adduced before him ; a verdict
was to be entered according to the result of the award, and the arbitrator
awarded that the defendant was guilty of the non-repair alleged in the
indictment : it was held that the reference was illegal, as the question
of liability to repair was of public concern {x).

Where indictments for perjury and conspiracy were removed into
the Queen's Bench, and on the indictment for perjury coming on for
trial, it was agreed, under the advice of counsel, that no evidence should
be tendered, a verdict of not guilty taken on both indictments, and that
all matters in difference between the prosecutor and defendant should
be referred to a barrister ; it was held that it would have been illegal to
refer the indictment for perjury, and, as it would seem, the indictment
for conspiracy ; but that the indictments were not referred, and the
verdicts of acquittal must at aU events stand ; and that there was
nothing illegal in referring all matters in difference and at the same
time consenting to verdicts of acquittal, unless there was a corrupt

(a) R. V. Hardey, 14 Q.B. 529, an indict- eludes 'a criminal proceeding by the Crown'

ment for conspiracy. R. v. Roxburgh, 12 from the powers of the Court to refer

Cox, 8, an indictment for common assault. causes or matters for inquiry or report (52

(t) Keir v. Leeman, 6 Q.B. 308. Can- & 53 Vict. c. 49, s. 13 (1) ). The Criminal

non V. Rands, 11 Cox, 631. Appeal Act, 1907 (7 Edw. VII. c. 23), s. 9,

(«) Keir v. Leeman, ubi sup. citing authorises the Court of Criminal Appeal to

Collins V. Blantern, 2 Wils. (K.B.), 341. order reference of certain kinds of matters

(v) Keir v. Leeman, supra. arising on a criminal appeal to a commis-

{w) R. V. Dobson, 6 Q.B. 637. See Fal- sioner for inquiry and report. Vide post,

lowes V. Taylor, 7 T. R. 475, and the ob- Bk. xii. c. iv.

servations on this case in Keir v. Leeman, {x) R. v. Blakemore, 14 Q.B. 544.
9 Q.B. 393. The Arbitration Act, 1889, ex-

582 Of Offences against the Administration of Justice, [book vii.

agreement to stifle the prosecution, which did not appear to be the
fact («/).

It is clear that the consent of the Court cannot make an agreement to
abandon a prosecution valid, if it would otherwise be unlawful {z).

Informations on Penal Statutes. — The compounding of informations
on penal statutes is a misdemeanor against public justice, by contributing
to make the laws odious to the people (a). Therefore in order to dis-
courage maHcious informers, and to provide that offences, when once
discovered, shall be duly prosecuted, it was enacted in 1575 by 18 Bliz.
c. 5, s. 4 (b), that an informer shall not compound or agree with any
person accused of contravening a penal statute without the leave of the
Court (sect. 4), and that if any person shall offend in making of com-
position or other misdemeanor contrary to the true intent and meaning of
this statute, or shall ' by colour or pretence or process, or without process
upon colour or pretence of any matter of offence against any penal
law, make any composition, or take any money, reward, or promise of
reward for himself as to the use of any other ' without the order or consent
of some Court, he shall on lawful conviction stand two hours in the
pillory (c), be for ever disabled to sue on any popular or penal statute,
and shall forfeit ten pounds (sect. 5). This statute extends even to
those penal actions where the whole penalty is given to the prosecutor (d).
But it does not apply to penalties only recoverable by information
before justices (e).

In a case where it was held that threatening, by letter or otherwise,
to put in motion a prosecution by a public officer, to recover penalties
for selling Fryer's Balsam withont a stamped label (/), for the purpose of
obtaining money to stay the prosecution (not being such a threat as a
firm and prudent man might not be expected to resist), was not in itself
an indictable offence at common law, though it was alleged that money
was obtained, it seems to have been considered that such an offence
would be indictable under 18 Eliz. c. 5, s. 5 (g). But no indictment for
any attempt to commit such a statutable misdemeanor can be sustained
as a misdemeanor at common law, without bringing the offence intended
within, and laying it to be against, the statute. Though if the party so
threatened had been alleged to be guilty of the offence imputed, within
the statute imposing the duty and creating the penalty, such an attempt
to compound and stifle a public prosecution for the sake of private lucre,
in fraud of the revenue, and against the policy of the statute (which
gives the penalty as auxiUary to the revenue, and in furtherance of
public justice for the sake of example), might also, upon general

(y) R. ■;;. Hardey, 14 Q.B. 529. In R. v. (b) Made perpetual by 27 Elizi.c. 10.

Bardell, 5 A. & E. 619, an indictment for (c) The puniahment of the pillory ia

conspiracy was referred. The lawfulness abolished. For substituted punishments,

of the reference was not discussed, and the see ante, p. 250.
question argued was whether the reference [d) 4 Bl. Com. 136, note (3).

was revocable under the Arbitration Act (e) R. v. Crisp, 1 B. & Aid. 282.

of 1833 (3 & 4 Will. IV. 0. 42). The Act of (/) i.e., in contravention of theMedicines

1889, as already stated, does not apply to Stamp Act, 1802 (42 Geo. III. u. 56).
criminal prooeedinga by the Crown, (g) R. v. Southerton, 6 East, 126. But

(z) Keir v. Leeman, supra. qumre, and see R. v. Criap, 1 B. & Aid. 286,

(a) 4 Bl. Com. 136. 287.

CHAP.viii.] Compounding Offences. 583

principles, have been deemed a sufficient ground on which to have
sustained the judgment at common law (h).

A party is liable to the punishment prescribed by 18 Eliz. c. 5, s. 5,
for taking the penalty imposed by a penal statute, even if there is no
action or proceeding for the penalty. The prisoner applied to one E.,
and demanded five pounds, as a penalty which E. had incurred under
the General Turnpike Act, by sufEering his waggon to be drawn on a
turnpike road by more than four horses. E. had incurred such a penalty,
and the prisoner obtained the money by way of composition to prevent
any legal proceedings ; no process had been sued out, and no information
had been laid before a magistrate. The prisoner having been convicted,
judgment was respited, upon a doubt whether the offence was within
the statute, so as to subject the prisoner to the specific punishment
therein prescribed, inasmuch as no action or proceeding was depending
in which the order or consent of any Court in Westminster Hall for a
composition could have been obtained. But the judges were all of
opinion that the conviction was right, and that the statute applies to
all cases of taking a penalty incurred, or pretended to be incurred,
without leave of a Court at Westminster, or without judgment or
conviction (i).

A person may be convicted under 18 Eliz. c. 5, s. 5, for taking money
upon colour or pretence of a party having committed an offence, though
in fact no offence liable to a penalty has been committed by the person
from whom the money is taken (/). As to taking rewards for the recovery
of stolen goods, &c., see post, Vol. ii. p. 1489.

{h) R. V. Southerton, 6 East, 126. But (i) E. v. Gotley [1805], R. & R. 84.

quoere, and see R. v. Crisp, 1 B. & Aid. 286, (j) R. v. Beat, 2 Mood. 124.

287.

( 584a )

CANADIAN NOTES.

OF COMPOUNDING OFFENCES AND STIFLING PROSECUTIONS.

Corrupting Witnesses, Jurymen, Accepting Bribes and Otherwise
Obstructing Justice. — Code sec. 180.

An indictment or charge that the accused paid money to a person
not to attend a Court of Revision in connection with an election, does
not disclose a "perversion or defeat of justice" under Code sec.
180(d), where it does not shew any ground for supposing that the
non-attendance would defeat justice, and where the person receiving
the money was the person whose right to vote was in question and
might therefore abandon his claim. The offence disclosed may pro-
perly be charged under sub-sec. (a) of Code sec. 180 as an attempt to
dissuade a person by a bribe from giving evidence. R. v. Lake, 11 Can.
Cr. Cas. 37.

Any attempt to corrupt or influence a jury by money, promises,
letters, threats or, persuasions, except only ,by the strength of the
evidence and the argument of the counsel in open Court at the trial of
the cause, constituted the common law offence of embracery, whether
the jurors gave any verdict or not and whether the verdict given were
true or false. R. v. Cornellier, 29 C.L.J. 69.

It is provided by the Canada Temperance Act, R.S.C. (1906) ch.
152, sec. 150, that everyone who on any prosecution under that Act or
any Act in force in any province in respect of the issue of licenses for
the sale of fermented or spirituous liquors, or under the Temperance
Act of 1864, tampers with a witness, either before or after he is
summoned or appears as such witness, or by the offer of money, or by
threats, or in any other way, either directly or indirectly, induces or
attempts to induce any such witness to absent himself or to swear
falsely shall incur a penalty of fifty dollars for each offence. This
special provision is not affected by the Code. R. v. Gibson, 29 N.S.R.
88.

A conviction may be made under this section of the Code for dis-
suading a person by corrupt means from giving evidence under the
Ontario Liquor License Act. R. v. Holland, 14 C.L.T. Notes 294.

It is an offence under Code sec. 180(a) to attempt to dissuade a
witness by bribery or other corrupt means to give in lieu of the wit-
ness's own belief that version of the facts which the person making
the corrupt offer believed to be the truth. R. v. Silverman, 14 Can. Cr.
Cas. 79.

5846 Compounding Penal Actions. [book vii.

Compounding Penal Actions.— Bee Code sec. 181.

The compounding of an information on penal statutes is a misde-
meanour against public justice by contributing to make the laws odious
to the people. Therefore in order to discourage malicious informers,
and to provide that when offences are once discovered they shall be
prosecuted, 18 Eliz. eh. 5 was passed, providing a fine upon an in-
former for taking money to settle the charge. But that statute did
not apply to penalties which are only recoverable by information
before justices, and an indictment for making a composition in such a
case was held bad in arrest of judgment. R. v. Mason, 17 U.C.C.P. 534.

The receipt of money in consideration of the non-prosecution of a
charge for the infraction of liquor laws is indictable as compounding
a misdemeanour of a public nature. Re Fraser, 1 C.L.J. 326 ; R. v.
Mabey, 37 U.C.Q.B. 248.

If the agreement be upon the understanding that the accused shall
be discharged from custody, although not so stated in express terms, it
is illegal and void. Leggatt v. Brown, 29 O.R. 530, 30 O.R. 225.

The assent of the magistrate to the charge being withdrawn on
being informed of the agreement of settlement does not validate the
agreement.

Where the charge is for an offence against the public as distin-
guished from offences which, although punishable by criminal process
are essentially in the nature of private injuries, it is immaterial that
the offence charged was not a felony before the abolition of the distinc-
tion between felony and misdemeanour by the Criminal Code.

Although a person who has parted with his money or property by
means of a fraud practised upon him or who has had it stolen from
him, is entitled to take his own property if offered to him, he is not
permitted to screen the offender by an agreement not to prosecute nor
to drop a prosecution already begun. Morgan v. McPee, 14 Can. Cr.
Cas. 308.

Obtaining money by false pretences is a crime committed against
the public as well as against the individual defrauded, and an agree-
ment between the latter and the accused to settle the charge pending
before the magistrate is void.

A contract between the accused and the complainant made in con-
sideration of the withdrawal of a charge of obtaining money by false
pretences in respect of which a preliminary enquiry was pending
before a magistrate is not enforceable, although the criminal proceed-
ings were dropped in pursuance of the contract. Morgan v. McPee
14 Can. Cr. Cas. 308.

Corruptly Taking Reward Without Bringing Offender to Trial

See Code sec. 182.

CHAP. VIII.] Advertising Rewards. 5840

Advertising Reward and Immunity for Offender Where Property
Stolen. — See Code see. 183.

A prosecution taken against the proprietor of a "newspaper" for
publishing an advertisement offering a reward for the recovery of stolen
property under paragraph (d) must be commenced within six months
from the commission of the offence. Sec. 1140(d).

( 585 )

CHAPTER THE NINTH.

OF BARRATRY, MAINTENANCE, CHAMPERTY, AND BUYING AND SELLING
PRETENDED TITLES AND EMBRACERY.

Sect. I. — Barratry.

The common law and early legislation were hostile ' to the trai3&c of
merchandising in quarrels, of huckstering in litigious discord ' (a). One
form of such traffic is common barratry, which is a misdemeanor at
common law (&).

A common barrator is defined to be ' a common mover, exciter, or
maintainer of suits, quarrels, in courts of record, or other courts, as the
county court, and the like ; or in the country, by taking and keeping
possession of lands in controversy, by aU kinds of disturbance of the
peace, or by spreading false rumours and calumnies whereby discord
and disquiet may grow among neighbours ' (c). But one act of this de-
scription will not make anyone a common barrator, as it is necessary in
an indictment for this offence to charge the defendant with being a
common barrator, which is a term of art appropriated by law to this
crime (d). It has been held that a man shall not be adjudged a barrator
in respect of any number of false actions brought by him in his own
right (e) ; but this is doubted, in case such actions be merely groundless
and vexatious, without any manner of colour, and brought only with a
design to oppress the defendants (/).

The offence is now rarely prosecuted. The most recent instance
occurred in 1889, viz., a prosecution for stirring up a series of fraudulent
actions for damages against a railway company (g).

It is not barratry for a soUcitor to maintain a party in a groundless
action, to the commencing whereof the solicitor was in no way privy (h).
It seems to have been held that a feme covert could not be indicted as
a common barrator (i) ; but this is doubtful (j).

(a) Reynell v. Sprye, 1 De G. M. & G. Oxford Diet. s.v.

656, 680, Knight Bruce, L.J. (d) Case of Barratry, uhi sup. R. v.

(b) See Burton's case, Cro. Eliz. 148, Hardwicke, I Sid. 282. R. v. Hannon, 6
referred to in Bradlaugh v. Newdegate, 11 Mod. 311.

Q.B.D. 1, 6 ; Chapman's case, Cro. Car. (e) Roll. Abr. 355.

340; Palfrey's case, Cro. Jac. 527 ; deci- (/■) 1 Hawk. c. 81, s. 3.

sions on the conclusion of the indictment. (g) R. v. Bellgrave, Guildford Assizes,

(c) R. V. Urlyn, 2 Wms. Sauud. 308, Archb. Cr. PI. (23rd ed.) 1080.
note (1). Case of Barratry, 8 Co. Rep. 36. {h) 1 Hawk. cT 81, s. 4.

1 Hawk. 0. 81, ss. 1, 2. Co. Litt. 368, a, b. (i) Bac. Abr. tit. ' Baron and Feme '

See the notes to Bac. Abr. tit. ' Barratry ' (G) in the notes, citing Roll. Rep. 39.
(A). As to the derivation of the word, see (j) 1 Hawk. c. 81, s. 6.

586 Of Offences against the Administration of Justice, [book vii.

Indictment. — An indictment for this offence may be in a general
form, stating the defendant to be a common barrator {h), without shewing
any particular facts : but it is clearly settled that the prosecutor must,
before the trial, give the defendant a note of the particular acts of barratry
which he intends to prove against him ; and that, if he omit to do so,
the Court will not suffer him to proceed in the trial of the indictment (I).
And the prosecutor wiU be confined to his note of particulars, and will
not be at liberty to give evidence of any other acts of barratry than
those which are therein stated (m).

It seems never to have been necessary to describe the offence as
committed at any certain place, as from its nature it involves a repetition
of several acts which may have been in different places (w).

Jurisdiction. — The statute 34 Bdw. III. c. 1, authorises the justices
to restrain rioters and all other barrators, and to pursue, arrest, take and
chastise them according to their trespass and offence, and to cause them
to be imprisoned and duly punished, according to the law and customs
of the realm, and according to that which to them shall seem best
by their discretions and good advisement (o), and barratry seems
accordingly to be triable at greater sessions (f).

Punishment. — The punishment for this offence in common persons
is by fine and imprisonment (g), and binding them to their good behaviour ;
and in persons of any profession relating to the law, a further punish-
ment by being disabled to practise for the future (r).

Sect. II. — Frivolous Aeeests.

To cause any person to be arrested or attached in the name of a
fictitious plaintiff or of a person who is ignorant of and has not authorised
the proceeding is criminal (s). The offence, if committed in respect of
proceedings in a superior Court, appears to be punishable as a contempt.
If committed in proceedings in inferior local Courts of record, it is
punishable summarily by imprisonment {t).

{k) R. V. Cooper, 2 Str. 1246. s. 14. Bae. Abr. tit. ' Barratry ' (C). 4

(I) R. V. Grove, 5 Mod. 18. I' Anson v. Bl. Com. 134. A statute of 1275 (3 Edw. I.

Stuart, 1 T. R. 748, BuUer, J. R. u. Wylie, Stat. West. prim. o. 3), providing for the

1 B. & P. (N. R.) 95, Heath, J. grievous punishment by the king of bar-

(m) Goddard v. Smith, 6 Mod. 262. rators, and of sheriffs permitting them in

(ra) Parcel's case, Cro. Eliz. 195. 1 their shires, was repealed in 1863 (26 & 27

Hawk. c. 81, 3. 14. Bac. Abr. tit. ' Bar- Vict. o. 125).
ratry (B). (r) As to punishing in a summary man-

(o) 1 Edw. III. St. 2, c. 16. Possibly ner, a person convicted of common Barra-

the inclusion in the commission of the try who shall practise as a solicitor in any

peace of maintainers of evil barrators (de suit or action in England, see Frivolous

malveis baretz en pais). Arrests Act, 1725 (12 Geo. I. c. 29, s. 4 ;

(p) 5 & 6 Vict. 0. 38, ». 1. Barnes v. made perpetual by 21 Geo. II. c. 3).
Constantine, Yelv. 46 ; Cro. Jac. 32, recog- (s) This offence would usually involve

nised in Busby v. Watson, 2 W. Bl. 1050. perjury, q.v. ante, p. 451 et sea. See 4 Bl.

See R. V. Urlyn, 2 Wms. Saund. 308, note Com. 134.

(1). In Hawk. c. 81, s. 8, there is a gMcere (0 8 Eliz. o. 2, s. 3. 4B1. Com. 134. An

to this point, as having been ruled differ- action for damages is also given, ss. 3, 4.

ently in RoUe's Reports. As to treble costs, the Act was repealed in

(g) See 34 Edw. III. o. 1. 1 Hawk. u. 81, 1842 (5 & 6 Vict. u. 97).

CHAP. IX.] Maintenance. 587

Sect. III. — Maintenance (m).

Earlier and later opinions as to what constitutes maintenance are not
in harmony (v). According to Coke («>), ' maintenance signifieth in law
a taking in hand, bearing-up or upholding of a quarrel or side, to the
disturbance or hindrance of common right.' This definition seems to
be based on 1 Edw. III. stat. 2, c. 14 (1327), which declares that ' because
the King desireth that common right be administered to all persons, as
well poor as rich, he commandeth and defendeth that none of his coun-
sellors, nor of his house, nor none other of his ministers, nor no great man
of the realm by himself nor by other, by sending of letters nor otherwise,
nor none other in this land great or small, shall take upon them to main-
tain quarrels or parties in the country to the let and disturbance of the
common law ' (x).

By 32 Hen. VIII. c. 9, s. 3 (1540), it is enacted, that ' no person or
persons of what estate, degree, or condition soever he or they be, do
hereafter unlawfully retain for maintenance of any suit or plea any
person or persons upon pain of forfeiture of ten pounds, recoverable
by penal action ' (y).

It was considered to be maintenance where a person assisted another
in his pretensions to lands, by taking or holding the possession of them
for him by force or subtlety, or where a person stirred up quarrels and
suits in relation to matters wherein he was in no way concerned (z), or
it may be where a person officiously intermeddled in a suit depending
in a court of justice, and in no way belonging to him, by assisting either
party to a suit with money, or otherwise, in such suit (a). Where there
is no contract to have part of the thing in suit, the party so intermeddling
is said to be guilty of maintenance generally ; but if the party stipulates
to have part of the thing in suit, his offence is called champerty (h).

' Unlawful maintenance is not merely under some circumstances a
civil wrong entithng the person injured to damages, but is a wrong

(u) As to American law, see 2 Bishop, the books ruralis {en pais), in distinction to

Cr. L. ss. 130, 131, 136-138. Kent. Comm. another carried on in courts of justice, and

Pt. 6, leot. 67. Story, Contracts (4th ed.), therefore called cttWafe. It is punishable

s. 578. As to Indian law, see Bhagwat v. at the King's suit by fine and imprison-

Debi [1908], L. R. 35 Ind. App. 48. ment, whether the matter in dispute any

(v) British Cash, &c., Co. v. Lamson Store way depended in plea or not ; but is said

Co. [1908], 1 K.B. 1006, 1013, Moulton, L.J. not to be actionable.

{w} Co. Litt. 368 b. Cf. 2 Co. Inst. 208, (a) 1 Hawk. c. 83, s. 3. Bac. Abr. tit.

212, 213. 1 Hawk. o. 83, ss. 1, 2. Bac. ' Maintenance.' 4 Bl. Com. 134. This

Abr. tit. ' Maintenance.' Other early defi- kind of maintenance is called curialis.

nitions are collected in Bradlaugh v. New- (5) Co. Litt. 368. 1 Hawk. c. 83, s. 3, vide

degate, 17 Q.B.D. 1, 5, and British Cash, <post, p. 594. The abuse of legal proceed-

&c., Co. V. Lamson Store Co. [1908], 1 K.B. ings by oppressive combinations to carry

1006, 1019. them into effect is said to have speedily

(x) Confirmed in 1383 (7 Rich. II. c. 15). appeared upon the establishment of the

4 Edw. III. u. 11, confirmed by the same laws in the time of Edward I. ' Instead o*

Act, was repealed in 1881 (44 & 45 Vict. their former associations for robbery and

c. 59). violence, men entered into formal combi-

(y) By a common informer. Half the nations to support each other in law suits ;

penalty goes to the Crown, half to the in- and it was found requisite to check this

former. The penalty is cumulative on the iniquity by Act of Parliament.' 2 Hume,

criminal liability and on civil liability to 320, referring to the ordinance of conspira-

persons injured. tors. Edw. I. post, p. 595.

(z) This kind of maintenance is called in

588 Of Offences against the Administration of Justice, [book vii.

founded on a prohibition by statute, which makes it a criminal act and
a misdemeanor ' (c). It has been held that the statutes relating to main-
tenance are declaratory of the common law {d). It seems immaterial
whether the maintenance is of the plaintiff or of the defendant (e), and
a corporation seems to be liable for maintenance as much as an individual,
unless it is in hquidation (/). A maintenance is not limited to civil
actions at common law : but it is not maintenance to assist another,
and in a criminal proceeding {g). But such assistance may amount to
malicious prosecution or conspiracy to pervert justice {h).

' The substance of the law is that parties shall not by their countenance
aid the prosecution of suits of any kind which every person must bring
on his own bottom and at his own expense ' {i).

' AU our cases of champerty and maintenance are founded on the
principle that no encouragement should be given to litigation by the
introduction of parties to enforce those rights which others are not
disposed to enforce ' {j).

Whoever assists another with money to carry on his cause, as by
retaining one to be of counsel for him, or otherwise bearing him out in
the whole or part of the expense of the suit, may properly be said to be
guilty of an act of maintenance (k). It has been said that no one can be
guilty of maintenance in respect of any money given by him to another
for the purposes of an intended suit, hefore any suit is actually conamenced ;
but it would seem that this, if not strictly maintenance, must be equally
criminal at common law {]). And a person may be as much guilty of
maintenance for supporting another after judgment, as for doing it
while the plea is pending, because the party grieved may be thereby
discouraged from bringing a writ of error or attaint (m).

(f ) Metropolitan Bank v. Pooley, 10 App. at common law as if the money were given
Cas. 210, 218, Selborne, L.O. after the commencement of the suit ;

(d) Peohell v. Watson, 8 M. & W. 691. though perhaps it may not in strictness

(e) See British Cash, &c., Co. v. Lamson come under the notion of maintenance.
Store Co. [1908], 1 K.B. 1006, 1021. Where a declaration alleged that the de-

(/) Ibid, and cf. Metropolitan Bank v. fendant unlawfully and maliciously did

Pooley, 10 App. Cas. 210, 218. procure, instigate, and stir up one T.

(g) See Harris v. Brisco, 17 Q.B.D. 504. to commence and prosecute an action
(h) Ante, p. 160. against the plaintiff, wherein certain issues
(i) Wallis V. Duke of Portland, 3 Ves. 49, were joined, as to which the plaintiff was

afifirmed. Bro. P. C. Suppl. 161, and ap- acquitted ; the Court held that no cause of

proved in Alabaster v. Harness [1895], 1 action appeared, the declaration not shew-

Q.B. 339, 343. ing maintenance (as the action appeared

(j) Prosser v. Edwards, 1 Y. & C. (Ex.) not to have been commenced when the

481, Abinger, C.B., approved in Alabaster defendant interfered), and not alleging

V. Harness, p. 344, Lopes, L.J. See Brad- want of reasonable and probable cause for

laugh V. Newdegate, vhi sup. Fischer v. the action. Flight v. Leman, 4 Q.B. 883.

Kamala Naicker, 8 Moore, Ind. App. 170, The distinction between instigating a suit

187 (' something against good poUoy and and maintaining one already begun seems

justice'). Vide post, p. 594, note (/). too narrow. Bradlaugh v. Newdegate, 11

(k) 1 Hawk. 0. 83, s. 4, and authorities Q.B.D. 1, 8.

there cited in the margin. (m) 1 Hawk. c. 83, a. 13. Bao. Abr. tit.

(I) Bac. Abr. tit. ' Maintenance.' 1 ' Maintenance ' (A). The writ of attaint is

Hawk. 0. 83, s. 12, where it is said, that if obsolete, and writs of error are superseded

it plainly appear that the money was given by appeals, vide post, Bk. xii. c. iv.

merely with a design to assist in the prose- Where a declaration alleged that the

cution or defence of an intended suit, which defendant unlawfully, maliciously, and

afterwards is actually brought, surely it without reasonable or probable cause, and

cannot but be as great a misdemeanor in without having any interest in the suit

the nature of the thing and equally criminal therein mentioned, instigated and stirred

CHAP. IX.] Maintenance. 589

Judicial opinion as to what constitutes unlawful maintenance from the
point of view of criminal and civil liability has gradually changed (n). The
view now accepted is that of Lord Abinger in Findon v. Parker (o) : ' The
law of maintenance as I understand it upon the modern construction is
confined to cases where a man improperly and for the purpose of stirring
up litigation and strife encourages others either to bring actions or to
make defences which they have no right to make'(p), and the tendency of
judicial decision is to attempt to carve out of the old law such remnant as
is consistent with modern views of pubhc policy and freedom of trade and
contract, and to disregard the ancient definitions : but to recognise that
there is such a thing as maintenance in cases of ' wanton and officious
intermeddling with the disputes of others in which the defendant has no
interest whatever, and where the interest he renders to one or the other
party is without justification or excuse ' (q).

The following classes of Acts in the nature of maintenance have
been held justifiable or excusable or unlawful from the circumstances
under which they are done.

Maintenance may be justified by the interest of the maintainer in
the suit, i.e., (1) an actual valuable interest in the result of the suit
itself as the present, contingent or future, (2) or the interest which
consanguinity or affinity to the suitor gives to the man who aids him, or
(3) the interest arising from the connection of the parties, e.g. as master
and servant, or (4) that which charity and compassion (r) gives a man on
behalf of a poor man, who, but for the aid of his richer helper, could not
assert his rights, and would be oppressed and overborne in his endeavour
to maintain them (s).

In litigation relating to a patent for nickel plating, advertisements in-
viting persons interested in the nickel plate trade to subscribe towards the
expenses of a pending appeal were held not to be open to objection, as the
persons invited to subscribe had a common interest with the advertiser (t).

1. Interest.— Not only those who have an actual interest in the thing
in dispute, e.g. those who have a reversion expectant on an estate-tail, or a
lease for life or years, &c., but also those who have a bare contingency
of an interest in the lands in question, which possibly may never vest in
possession, and even those who by the act of God have the immediate
possibility of such an interest, such as heirs apparent (u), or the husbands
of such heirs, though it be in the power of others to bar them, may
lawfully maintain another in an action concerning such lands : and if a

up a pauper to commence and prosecute Cash, &c., Co. v. Lamson Store Co. [1908],

an action against the plaintiff, by reason 1 K.B. 1006, 1012, 1020. And see p. 1014.

whereof the pauper did commence and Moulton, L.J.

prosecute such action, whereby the plaintiff (q) [1908] 1 K.B. 1006, 1013, 1014,

was put to great trouble and vexation, and Moulton, L.J.

obliged to lay out a large sum in the defence (r) See 4 Bl. Com. 134. Harris v. Brisco,

of such action ; the Court held the deolara- 17 Q.B.D. 504, 513.

tion good. Pechell v. Watson, 8 M. & W. (s) Bradlaugh v. Newdegate, 17 Q.B.D.

691. 1, 11, Coleridge, C.J., approved in Alabas-

(n) Thus the purchase of a chose in action ter v. Harness [1895], 1 Q.B. 339, 343,

which under the old law amounted to Esher, M.E.

maintenance, is not now so regarded. {t) Plating Co. v. Farquharsou [1881], 17

Fitzroy v. Cave [1905], 2 K.B. 364. Ch. D. 49 (C.A.).

(o) 11 M. & W. 675. (m) See Alabaster v. Harness [1895], 1

Ip) Quoted and approved in British Q.B. 339; 346, Bigby, L.J.

590 Of Offences against the Administration of Justice, [book vii.

plaintifi in an action of trespass aliene the lands, the alienee may produce
evidence to prove that the inheritance at the time of the action was in
the plaintiff, because the title is now become his own (v). Also, he who
is bound to warrant lands may lawfully maintain the tenant in defence
of his title, because he is bound to render other lands to the value of those
that shall be evicted. And he who has an equitable interest in lands or
goods, or even in a chose in action, as a cestui que trust, or a vendee of
lands, &c., or an assignee of a bond for a good consideration, may lawfully
maintain a suit concerning the thing in which he has such an equity (w).
And wherever any persons claim a common interest in the same thing,
as in a way, churchyard, or common, &c., by the same title, they may
maintain one another in a suit concerning such thing (x).

Where, on the trial of an action brought to recover the amount of an
attorney's bill, in which there was a plea of maintenance, it appeared that
Jesus College, Oxford, had given notice to set out tithes in kind to aU the
owners of old inclosures in the parish of Tredington, who had, as far as
living memory went, paid certain sums of money in lieu of tithes for the
old inclosures, and that, at a meeting of the owners of such old inclosures,
it was agreed by them that they should defend any suit or suits which
should be instituted by Jesus College, to enforce the payment of tithes,
and that the expenses of such defence should be paid by the owners in
proportion to their interests, as ascertained by the poor rate ; the owners
considering that if Jesus College should succeed in one suit as to any part
of the old inclosures, that would invalidate the payments as to all. It
was held that the agreement to defend the suits was not maintenance ;
for, although the payments were not the same per acre, and although the
interest in each payment was separate, yet all the owners of the old
inclosures had an interest in supporting the moduses over all the old
inclosures, and consequently the agreement was not officiously entered
into in order to defend the suits (y).

Where a count stated that Y. had deposited a sum of money in plain-
tiff's hands, which the plaintiff had dehvered to the defendant at his
request, and that Y., threatening to bring an action against the plaintiff
to recover the money, and thereupon, in consideration that the plaintiff,
at the request of the defendant, would defend any action Y. should com-
mence, the defendant undertook to save the plaintiff harmless ; that Y.
brought an action to recover the money, and that the plaintiff defended
it with the privity and consent of the defendant ; it was held that this
was not maintenance (z).

Where a member of ParHament procured an informer to sue another
member of ParHament for penalties for having sat and voted without
being duly qualified, and gave him an indemnity against all costs and
expenses, it was held that the member and the informer had no such
common interest in the penalty sued for as would be a defence to an action
for maintenance (a).

(v) Bac. Abr. tit. ' Maintenance ' (B). 1 tit. ' Maintenance ' (B).

Hawk. 0. 83, sa. 14, 15, &c. {y) Kndon v. Parker, 11 M. & W. 675,

(w) Id. ibid., and see the judgment of and MS. C. 8. G.

Buller, J., in Master v. Miller, 4 T. R. 340 (z) Williamson v. Henley, 6 Bing. 229.

et seq. (a) Bradlaugh v. Newdegate, 17 Q.B.D.

{x) 1 Hawk. c. 83, ss. 24, 25. Bao. Abf. 1.

CHAP. IX.] Maintenance. 591

H. being interested in certain appliances for the electrical treatment of
diseases, employed T. as an expert to report on them, who pubUshed a
favourable report. H. subsequently instigated T. to sue A. for publishing
a newspaper article commenting unfavourably on T.'s report and quaUfi-
cations. The action failed, and A. sued H. for maintaining it. It was
held that H. had no common interest with T. in his action for libel, and
was liable for maintenance of that action (&).

The action being for libel in point of law could concern only the person
who brought it (c).

Where the defendants, a trading company, obtained contracts for the
hire of an apparatus in which the company dealt from customers of the
plaintiffs of a rival trading company^ and agreed to indemnify the hirers
from claims by the plaintiffs for breach of contract, it was held that
their contracts of indemnity were given in lawful defence of the com-
mercial interests of the defendants, and that they were not liable for
maintenance {d).

At one time not only he who laid out money to assist another in his
suit, but even he who by his friendship or interest saved the party
an expense which he might otherwise have had to incur, or gave or
endeavoured to give any kind of assistance to a party in the manage-
ment of his suit, was held to be guilty of maintenance (e). But this
doctrine is not now accepted (/).

It has been said that he who gives any public countenance to another
in relation to his suit is liable for maintenance (g) ; as if a person of great
power and interest says pubUcly that he will spend a sum of money on
one side, or that he will give a sum of money to labour the Jury, whether
in truth he spend anything or not ; or where such a person comes to the
bar with one of the parties, and stands by him while his cause is tried,
whether he says anjrthing or not ; for such practices not only tend to
discourage the other party from going on with his cause, but also to
intimidate juries from doing their duty (h). But it seems that a bare
promise to maintain another is not in itself maintenance, unless it be
either in respect of the power of the person who makes it, or of the public
manner in which it is made {i). A man is not guilty of an act of mainte-
nance, by giving another friendly advice as to his proper remedy at law,
or as to the lawyer likely to do his business most effectually (j).

2. Affinity. — ^Whoever is of kin, or godfather to either of the parties,
or related by any kind of affinity still continuing, may lawfully stand
by at the bar and counsel him, and pray another to be of counsel for him ;
but cannot lawfully lay out his money in the cause, unless he be either
father, or son, or heir-apparent, to the party, or husband of such an
heiress (k).

(b) Alabaster v. Harness [1895], 1 Q.B. 1 Hawk. o. 83, ss. 5, 6.

399. Of. Shaokell v. Rosier [1836], 2 Bing. (/) Master v. Miller, 4 T. R. 340, BuUer,

N. C. 635. A contract to indemnify the J.

plaintiff against an action for publishing a (g) See post, p, 598, ' Embracery.'

Ubel at the defendant's request. (A) 1 Hawk. c. 83, s. 7. Bac. Abr. tit.

(c) See British Cash, &o., Co. v. Lamson ' Maintenance ' (A).
Store Co. [1908], 1 K.B. 1006, 1021, (i) 1 Hawk. c. 83, s. 8.

Buckley, L.J. (;) Ibid. s. 9. Bac. Abr. tit. ' Main-

{d) Id. ibid. tenance ' (A),

(e) Bro. tit. ' Maintenance,' 7, 14, 17, &c. (k) Bac. Abr. tit. ' Maintenance ' (B).

592 Of Offences against the Administration of Justice, [book vii.

3. Tenure. — It seems that a landlord might justify laying out his
own money in defence of his tenant's title, where the lands were originally
derived from the landlord, but that he could not maintain the tenant
in respect of lands not held of himself (l).

4. Service. — A master may pray one to be of counsel for his servant,
and may go with him, and stand with him, and aid him at the tria,l :
also it is said, that if the servant be arrested, the master may assist him
with money to keep him from prison, that he may have the benefit of
his service (m). And a servant cannot lawfully lay out any of his own
money to assist the master in his suit (n).

5. Charity. — And one may lawfully give money to a poor man to
enable him to carry on his suit (o) : and anyone may safely go with a
foreigner, who cannot speak English, to a counsellor and inform him of
his case (p).

The gift to be justified must be out of charity or compassion, but it
is not necessary to shew that due inquiry was made or that a reasonable
belief existed, that the action maintained was well founded (q). Charit-
able aid is none the less within the exception when coupled with interest
arising from community- of religion in a dispute relating to religious
matters (r).

6. Lawyer and Client. — It is not maintenance for a lawyer to give
professional aid to his client in legal proceedings.

A barrister may lawfully set forth his chent's cause to the best advan-
tage ; but can no more justify giving him money to maintain his suit,
or threatening a juror (s),than any other person. And a solicitor, when
retained, may lawfully prosecute or defend an action, and lay out his
own money in the suit (t).

Where there was one attorney on the record, and another attorney
became before the trial really and substantially the attorney for the
client in the conduct of the suit, and the latter, after verdict, but before
judgment, bona fide purchased from his client the benefit of his verdict,
it was held that the transaction, being a purchase of the subject-matter
of the suit by the attorney, was void ; for the attorney was to be con-
sidered as the attorney having the management of the cause, and the
purchase was in efiect a purchase by the attorney in the cause of the
subject-matter of it pendente lite, not for the purpose of enabling the chent

1 Hawk. u. 83, s. 26. Among the relations laugh v. Newdegate, 11 Q.B.D. 1, 11.

specified under this head are brother, son- (o) See the cases from the year books

in-law, and brother-in-law. Bradlaugh v. quoted in Harris v. Brisco, 17 Q.B.D. 504,

Newdegate, 11 Q.B.D. 1, 11. But in 512, Fry, L.J.

Burke v. Greene, 2 Ball & Beatty (Ir.) 517, (p) Bro. tit. ' Maintenance.' Bao. Abr.

an advance of money by a first cousin for tit. ' Maintenance.' 1 Hawk. c. 83, as. 30,

recovery of an estate was held maintenance. 37.

Cf. Hutley v. Hutley, L. B. 8 Q.B. 112, a {q) Harris v. Brisco, 17 Q.B.D. 504.

champertous gift between cousins. (r) Holden v. Thompson [1907], 2 K.B.

(I) 1 Hawk. c. 83, s. 29. 489, approved in British Cash, &c., Co. v.

(m) Bro. tit. 'Maintenance,' 44, 52. 1 Lamson Store Co. [1908], 1 K.B. 1006

Hawk. c. 83, ss. 31, 32, 33, where reference 1014, Moulton, L.J.

is made to real actions now obsolete. (Writs (a) Vide post, 'Embracery,' p. 598, and

of right for dower, de dote unde nil habuit, ante, ' Contempt,' p. 537.
and jMore mpet^if, have been superseded by (t) 2 Co. Inst. 564. Bao. Abr. tit.

writsof summons, undertheJudicatureActs ' Maintenance ' (B) 5. 1 Hawk, o 83 ss'

and Rules.) 28, 29, 30. • ■ . •

(») 1 Hawk, c. 83, s. 24. But see Brad-

CHAP. IX.] Maintenance. 593

to carry on the suit, but because he wanted money ; and independently
of the statutes restraining the purchase of property in suit, no attorney
could be permitted to purchase anything in litigation, of which htigation
he had the management {u).

A contract with a solicitor to give him a portion of the profits arising
from the successful prosecution of a suit to establish a right to coal
mines on being indemnified against the costs of the proceedings is
champerty and maintenance {v).

A contract whereby a solicitor stipulates with a client to receive,
in consideration of the advances requisite to conducting the proceedings
to a successful issue, over and above his legal costs, a sum commensurate
with his outlay and exertions and with the benefit resulting to the client,
is unlawful. The contract would be directly in violation of the laws
against maintenance, if the stipulation were that the plaintiff, as solicitor
in the action, in consideration of his advancing the funds necessary for
carrying on the Htigation, should receive a portion of the proceeds or
property to be recovered ; and the only difference between the two
cases is that, in the former, the party would have the security of the
property ; whereas here he has only the personal security of the client.
But if he be a solvent man, he get a share of the property by another
mode, viz., by suing him, and obtaining judgment (w). An agreement
to be carried into effect in this country, which would be void on the
ground of champerty if made here, is not the less voidbecause it is made
in a foreign country, where such a contract would be legal. Where,
therefore, an attorney entered into an agreement in France with a French
subject to sue for a debt due to the latter from a person residing here,
whereby the attorney was to receive by way of recompense a moiety of
the amount recovered ; it was held that this agreement was void for
champerty (x). If any act were done under such an agreement in
England, the party doing it would be indictable here (y).

But there is a distinction between the assignment by a client to his
solicitor of the subject-matter of a suit by way of security, and an abso-
lute sale of the subject-matter of the suit. In the latter case the solicitor
might have an opportunity of imposing on his cUent, from his superior
knowledge of the value of that subject-matter, and might after the pur-
chase take improper means to increase the value. But a mere assign-
ment, by way of security, is open to no such danger,- and may be very
advantageous to the client (z). A client having' obtained a verdict for
recovery of certain land, by deed granted the crop of potatoes then grow-
ing upon the land, and all other effects thereon, until payment of £100
due with interest to the attorney (for money lent and professional ser-
vices), with a proviso that if the client paid the £100 and the interest on
a certain day, the deed should be void. The deed also contained a power
to the attorney, on default of payment, to enter, carry away, and dispose

(«) Simpson v. Lamb, 7 E. & B. 84. (re) Grell v. Levy, 16 C. B. (N. S.) 73.

(v) Hilton V. Woods [1867], L. R. 4 Eq. (?/) See R. v. Brisac, 4 East, 163. A case

432. A title to sue arising under such a of conspiracy formed outside England. And

contract is bad. Ibid. 439. Vide post, vide ante, p. 53.

p. 595, ' Champerty.' (z) Per Campbell, C. J., Anderson v.

(j«) Earle v. Hopwood, 9 C. B. (N. S.) Radcliffe, E. B. & E. 806 ; citing Wood v.

666. See Price v. Beattie, 32 L. J. Ch. 734. Downes, 18 Ves. 120.

VOL. I. 2 Q

594 Of Offences against the Administration of Justice. [Book vli.

of the effects assigned ; provided that, if he sold the property, he should
hold the surplus, after paying the expenses and reimbursing himseli, m
trust for his cUent. It was held that this deed could not be impeached
on the ground of either champerty or maintenance (a)- . .

But no barrister or solicitor can justify using deceitful practices m
maintenance of a client's clause : and they are liable to be punished for
misdemeanors in this respect by the common law, and also by 3 Edw. I.
Stat. Westm. 1, c. 29. AU fraud and falsehood, tending to impose upon
or abuse the justice of the King's courts, are within the purview of the
statute (&).

It would seem that absence of mens rea or honesty of motive is not a
defence to an indictment for maintenance (c).

Punishment. — By the common law as reinforced by the statutes set
out below, all unlawful maintainers are not only liable to render damages
in an action at the suit of the party grieved, but may also be indicted and
fined, and (Or) imprisoned ; and it seems that a Court of record may
Commit a man for an act of maintenance in the face of the Court (d).

By a statute of 1377 (1 Eich. II., c. 4), ' it is ordained and established
and the King our Lord straightly commandeth that none of his counsellors,
officers, or servants nor any other person within the realm of England, of
whatsoever estate or condition they be shall from henceforth take nor
sustain any quarrel by maintenance, in the country or elsewhere, on
grievous pain ; that is to say, the counsellors and the King's great
officers, on a pain which shall be ordained by the King himself, by the
advice of the lords of his realm ; and other less officers and servants of
the King, as well in the Exchequer and all the other Courts and places as
of his own meiny, upon pain to lose their offices and services and to be
imprisoned and then to be ransomed at the King's will, every of them
according to his degree, estate and desert : and all other persons through
the realm upon pain of imprisonment, and to be ransomed as the other
aforesaid ' (e).

Sect. iV.— CliAMl>EETy (/),

Ohamperty is a species of maintenance, being a bargain with a plaintiff
Or defendant campum partiri, to divide the land or other matter sued for
between them, if they prevail at law ; whereupon the champertor is to

(a) Andelson v. Radcliffe, supra, af- et seg. Bdo. Abr. tit. ' Maintenance,' in
firmed in error, E. B. & E. 1]9, upon the the margin.

ground that the Contract was Confined to (c) See Alabaster v. Harness [1895], 1

the fayment of d, debt already due for Q,B. 339, 345, Bio-by, L.J.

costs subject to taxation, and therefore the {d) 2 RoUe Abr 114 2 Co Inst 208

attorney got nothing but a £eo"rity for a ] Hawk. c. 83, s. 38. B^ic. Abr."tit. ' Main^

jtist debt. See also Cook v. Eield, 15 Q.B. tenance ' (C). Hetlev 79

460, whete an apement to sell the possi- (f) This statute w'as confirmed in 1383

bility and expectancy of an estate, m case (7 Rich. TI. c . 15), and againin 1540 (32 Hen.

the vendor became devisee of it, was held VIII. c. 9, s. 1). See 1 Hawk o 80 s 143

'^^"'- p T ^ 01-. -R AV, J (/) The English law of ohamperty does

(b) 2 Co. Inst. 215. Bac. Abr. and not extend to India. Kunwar Ram Lai w
Hawk, supra. The statute enacts that the Nil Kanth [18931, L- R 20 Ind Ann 112
offender shall be imprisoned for a year and Cf. Fischer v. Kamala ' Naioker ri8601 8
a, day, and shall not plead again if he be a Moore, Ind. App. 170. Bhaswat „ TiM
pleader. Dy. 362. 1 Hawk. c. 83, s. 33 [1908], L. R. 35 Ind. App. 4^

CHAP. IX.] Champerty. 595

carry on the party's suit at his own expense (g). It is defined in the old
books to be, the unlawful maintenance of a suit, in consideration of some
bargain to have part of the thing in dispute, or some profit out of it (h).

The Ordinacio de Conspiratoribus (1300, 33 Edw. I.) declares that
' champertors be they that move pleas or suits or cause to be
moved either by their own procurement or by others and sue them at
their proper costs for to have part of the land in variance or part of
the gains ' (i).

The statute of Westminster 1 (1275, 3 Edw. I.), c. 25, enacts, that ' no
officers of the King, by themselves nor by others, shall maintain pleas,
suits, or matters, hanging in the King's courts, for lands, tenements, or
other things, for to have part or profit thereof, by covenant made between
them ; and he that doth shall be punished at the King's pleasure ' (j).
In this statute ' courts ' means courts of record only, and ' covenant ' in-
cludes all kinds of promises and contracts of this kind. Maintenance in
personal actions, to have part of the debt or damages, is as much within
the statute as maintenance in real actions for a part of the land. The
statute applies to a grant of rent out of the lands in question, but not to a
grant of rent out of other lands ; nor to a grant of part of a thing in suit,
made in consideration of a precedent debt (h) . The maintenance of a tenant
or defendant is as much within the meaning of the statute as the main-
tenance of a demandant or plaintiff. And it has been held immaterial
whether he who brings a writ of champerty did in truth suffer any
damage by it, or whether the plea wherein it is alleged be determined or
not (1).

By 13 Edw. I (Stat. Westm. the second) , c. 49 (m), it is enacted that ' the
chancellor, treasurer, justices, nor any of the King's council, no clerk
of the chancery, nor of the exchequer, nor of any justice or other officer,
nor any of the Ejng's house, clerk ne lay, shall not receive any church,
nor advowson of a church, land, nor tenement, in fee, by gift, nor by
purchase, nor to farm, nor by champerty, nor otherwise, so long as the
thing is in plea before us, or before any of our. oflacers ; nor shall take no
reward thereof. And he that doth any such thing (hi ceste chose face),
either himself or by another, or make any bargain {baret y face) shall be
punished at the King's pleasure, as well he that purchaseth as he that
doth sell.' This statute extends only to the officers therein named, and
not to any other person (n). But it so strictly restrains aU such officers
from purchasing any land, pending a plea, that they cannot be excused
by a consideration of kindred or affinity, and they are within the meaning
of the statute by barely making such a purchase, whether they maintain
the party in his suit or not ; whereas such a purchase for good con-
sideration made by any other person, of any terre-tenant, is no offence,
unless it appear that he did it to maintain the party (o).

(17) 4 Bl. Com. 135. Hawk. o. 84, a. 3 el seq. Bac. Abr. tit.

(h) Stanley v. Jones, 7 Bing. 377, Tindal, ' Champerty.'

C.J. (1) Id. ibid.

(i) 1 Stat. Rev. (2nd ed.), 77. (m) 1 Stat. Eev. (2nd ed.), 35. The old

(j) Said to be declaratory of the common translations of this and the next Act do not

law. Harris r. Brisoo, 17 Q.B.D. 504, 511 accurately represent the ITrench text.

(C. A.), (n) 2 Co. Inst. 484, 485.

(J) See the authorities collected in 1 (o) 1 Hawk. c. 84, s. 12.

2q2

596 Of Offences against the Administration of Justice, [book vli.

28 Edw. I. c. 11 (p), reciting that ' the King hath heretofore ordained
by statute that none of his ministers should take no plea for chanaperty (a
chamfaH), by which statute others than officers (autres que fmnistres)weie
not bounden before this time/ enacts that ' the King will that no officer,
nor any other, for to have part of the thing in plea, shall not take upon
him the business that is in suit ; nor none upon any such covenant shall
give up his right to another ; and if any do, and he be attainted thereof,
the taker shall forfeit unto the King so much of his lands and goods as
doth amount to the value of the part that he hath purchased for such
taking upon him (enprise). And to attaint him thereof (pur ceo atteindre),
whosoever will shall be received to sue for the King before the justices
before whom the plea hangeth, and the judgment shall be given by them.
But it may not be understood hereby, that any person shall be prohibit
to have counsel of pleaders, or of learned men in the law for his fee, or of
his parents and next friends.'

It seems to be agreed that champerty in any action at law, and pur-
chase of land, pending a suit in equity concerning it, are within this sta tute ;
and a lease for life or years, or a voluntary gift of land, pending a plea,
is as much within the statute as a purchase for money. But neither
a conveyance executed, pending a plea, in pursuance of a precedent
bargain, nor a surrender by a lessee to his lessor, nor a conveyance or
promise thereof made by a father to his son, or by an ancestor to his
heir-apparent, nor a gift of land in suit, after the end of it, to a counsellor,
for his fee or wages, without any kind of precedent bargain relating to
such gift, are within the meaning of the statute (q). A bargain by a
man, who has evidence in his own possession respecting a matter in
dispute between third persons, and who at the time professes to have
the means of procuring more evidence, to purchase from one of the
contending parties, as the price of the evidence which he so possesses
or can procure, an eighth part or share of the sum of money, which
shall be recovered by means of the production of that evidence, is an
illegal agreement ; and if there be any difference between such a con-
tract, and direct champerty, it is strongly against the legahty of such
contract ; as besides the ordinary objection, that a stranger to the
controversy has acquired an interest to carry on the litigation to the
utmost extent, by every influence and means in his power, the bargain
to furnish and to procure evidence for the consideration of a money
payment in proportion to the effect produced by such evidence, has a
direct tendency to pervert the course of justice (r). But a contract to
communicate information on terms of getting a share of any property
that might be recovered by means of this information is not champerty (s),
unless it provides that the person giving the information and to share the
property is himself to recover the property (t). Where a bill was filed
for the purpose, amongst other things, of declaring an agreement void,

(p) 1 Stat. Rev. (2nd ed.), 58. (r) Stanley v. Jones, 7 Bing. 369. Potts

Iq) Bao. Abr. tit. ' Champerty.' 1 Hawk. v. Sparrow, 6 C. & P. 749.

c. 84, s. 14 et seq. But it is said to be (s) Sprye v. Porter, 7 E. & B. 58.

dangerous for a counsellor to meddle with (t) Rees v. De Bernardy [1896], 2 Ch.

any such gift, since it cannot but carry with 437, Romer, J. Wedgerfield v. De Ber-

it a strong presumption of champerty. 2 nardy [1908], 24 T. L. R. 497 : 25 T. L. R

Co. Inst. 564. 21.

OHAP. IX.] Buying and Selling Pretended Titles. 597

which had been made by a seaman for the sale of his chance of prize
money to his prize agents, who were to carry on the suit, Grant, M.E.,
expressed an opinion that the agreement was void, as amounting to
champerty (m). An agreement with a man of straw to support a suit
by him for penalties on terms of sharing the penalties recovered is
"champerty {v).

Subscription by strangers of money to maintain litigation for the
recovery of property to be repaid out of the property if recovered is both
maintenance and champerty (w).

In Sprye v. Porter (x), to a declaration upon an agreement the defen-
dant pleaded that one T. died possessed of personal property, intestate
and without any known relation, and that administration had been
granted to the Treasury Solicitor, and that the defendant was ignorant
of his being related to T., or in any way entitled to the property ; and
that it was thereupon unlawfully agreed between the parties that the
plaintiff and E. should give and supply information and evidence in case
of proceedings for recovery of the' property, that, by means of such
information and evidence, the defendant should successfully recover
the property ; and that if by means of such information and evidence
the defendant should actually recover the property, he would pay each
of them one-fifth of the amount ; and that for the purpose of carrying
this illegal agreement into effect the parties entered into the agreement
set out in the declaration, and that it was under the illegal agreement
that the property was actually recovered. It was held that this was
maintenance in its worst aspect (y).

While the mere assignment of the subject of a suit is not maintenance,
it is maintenance to agree to give another the benefit of a suit on con-
dition that he prosecutes it (z).

Kelationship or collateral interest will not justify or excuse cham-
perty (a).

Sect. V. — Buying and Selling Pretended Titles.

Buying or selling a pretended title is said in the books to be a high
offence at common law, as plainly tending to oppression, for a man to
buy or sell at an under rate a doubtful title to lands known to be disputed,
to the intent that the buyer may carry on the suit, which the seller does
not think it worth his while to do. And it seems not to be material
whether the title be good or bad ; or whether the seller were in possession
or not, unless the possession were lawful and uncontested (b). Offences
of this kind were restrained by several statutes. By 13 Edw. I. c. 49 (c)
no person of the King's house shall buy any title whilst the thing is in

(u) Stevens v. Bagwell, 15 Ves. 139. (y) Stanley v. Jones, 7 Bing. 369, was

{v) Wood V. Downes, 18 Ves. 120, Eldon, held on express authority to shew that the

0. SeeBradlaughw.Newdegate, 11 Q.B.D. agreement was illegal.

1> 13. (z) Harrington v. Long, 2 My. & K. 590.

(w) Re Thomas [1894], 1 Q.B. 747. In Cf. Fitzroy v. Cave [1905], 2 K.B. 364.

this case the solicitor for the litigant con (o) Hutley v. Hutley, L. R. 8 Q.B. 112.

cerned in the champerty attempted to set (b) Bac. Abr. tit. ' Maintenance ' (E).

up the illegality as an answer to a claim for 1 Hawk. u. 86, s. 1. Moore (K.B.) 751.

taxation of costs. Hob. 115. Plowd. 80.

{x) 7 E. & B. 58. (c) Ante, p. 595.

598 Of Offences against the Administration of Justice, [book vii.

dispute, on pain of both the buyer and seller being punished at the King's
pleasure. The similar but more general provisions of 32 Hen. VlII. c. 9,
s. 2 {d), were repealed by sect. 11 of the Land Transfer Act, 1897
(60 & 61 Vict. c. 65).

Sect. VI.— Embracery.

Embracery consists in such practices as tend to affect the administra-
tion of justice by improperly working upon the minds of jurors. It is
immaterial whether the jurors are grand jurors or petty jurors (e). Any
attempt whatsoever to corrupt or influence or instruct a jury in the cause
beforehand, or in any way to incline them to be more favourable to the
one side than to the other, by money, promises, letters, threats, or per-
suasions, except only by the strength of the evidence and the arguments
of counsel in open court, at the trial, is an act of embracery, whether the
jurors on whom such an attempt is made give verdict or not, or whether
the verdict given be true or false ( / ). Ajid giving money to another, to
be distributed among jurors, is an offence of the nature of embracery,
whether the money is or is not actually distributed. It is as criminal in
a juror as in any other person to endeavour to prevail with his companions
to give a verdict for one side by any means except by arguments from
the evidence which may have been produced, and exhortations from the
general obligations of conscience to give a true verdict. And all fraudu-
lent contrivances whatsoever to secure a verdict are offences of this
nature ; as where persons by indirect means procure themselves or others
to be sworn on a tales de circumstantibus in order to serve on one side (g).

It is said that the law will not suffer a mere stranger so much as to
labour a juror to appear, and act according to his conscience : but it
seems that a person who may justify any other act of maintenance (h)
may safely labour a juror to appear and give a verdict according to his
conscience ; but that no other person can justify intermeddling so far.
And no one can justify the labouring a juror not to appear (i).

Offences of this kind are indictable misdemeanors punished by fine
and imprisonment without hard labour (j). They have also been dealt
with by statute. 5 Edw. III. c. 10 enacted that any juror taking of the one
party or the other, and being duly attainted, should not be put in any
assizes, juries, or inquests, and shaU be commanded to prison, and further
ransomed at the King's will.

{d) For the construction of this section, 416, cit. The latest precedents of an in-

see 1 Hawk. c. 86, s. 7. Kennedy v. Lyell, dictment for this offence were in E. v.

15 Q.B.D. 491. Jenkins v. Jones, 9 Baker, 113 Cent. Grim. Ct. Sess. Pap. 374,

Q.B.D. 128. 589, and R. v. Davies [1909], 150 Cent.

(e) Anon. v. Rowe (K.B. Ir.), 644, 727. Cr. Ct. Sess. Pap. 736, in which case the

Information for procuring a grand jury to indictment was for attempting to pervert

throw out bills of indictment. the course of justice by influencing a juror

(/) 1 Hawk. 0. 86, ss. 1, 5. 4B1. Com. 140. during a criminal trial. As to giving

Ig) 1 Hawk. o. 85, s. 4. R. v. Opie, 1 money to a juror after the verdict, see

Wms. Saund. 301, an information for a 1 Hawk. c. 85, s. 3.

conspiracy in the nature of embracery to (h) Ante, pp. 587 et seq.

obtain, a false verdict in which the overt (i) 1 Hawk. c. 85, s. 6.

act alleged was contriving by bribes to get {j) Ibid. s. 7. 4 Bl. Com. 140. In Be

D. and T., two of the conspirators included Dunn [1906], Victoria L. R. 493, the ques-

in the tales and sworn of the jury. As to tion was discussed whether embracery

bribing jurors, see also R. v. Young, 2 East, could be dealt with as contempt of Court.

CHAP. IX,] Of Embracery, 599

34 Bdw. III. c, 8 (1360) enacted that a juror attainted of such ofEence
should be imprisoned for a year.

The Juries Act, 1825 (6 Geo. IV. c. 50), s. 61, repeals so much of 5 Edw.
III. c. 10, ' as relates to the punishment of a corrupt juror,' and so much
of 34 Edw. III. c. 8 {h), ' as directs the proceedings against jurors taking
a reward to give their verdict ' ; and enacts and declares, by sect. 61,
that ' notwithstanding anything herein contained, every person who
shall be guilty of the ofEence of embracery, and every juror who shall
wilfully or corruptly consent thereto, shall and may be respectively
proceeded against by indictment or information, and be punished by
fine and imprisonment, in hke manner as every such person might have
been before the passing of this Act.'

32 Hen. VIII. c. 9, s. 3, enacts that no person shall ' embrace any free-
holders or jurors ' . . . 'fortomaintainanymatter or cause, or to the dis-
turbance or hindrance of justice or to the procurement or occasion of any
manner of perjury by false verdict or otherwise ' . . . ' upon pain of
forfeiture for every such ofEence of £10,' half to the King and half to him
that shall sue within a year (Z).

(k) These Acts were repealed aa to Ire- same lines as s. 62, supra.
land in 1833 (3 & 4 Will. IV. c. 93, s. 50). il) As to tke meaning of this statute, see

The Juries (Ireland) Act, 1871 (34 & 35 1 Hawk. o. 85, s. 11,
Vict. 0. 65), s. 49, is substantially on the

( 600a )

CANADIAN NOTES.

OF BARRATRY, MAINTENANCE, CHAMPERTY, ETC.

Sec. 4. — Champerty is a criminal offence, and a champertous con-
tract will not be enforced by the Courts. The English champerty laws,
were introduced or continued in Ontario and Quebec under the Quebec
Act, 1774. Meloche v. Dequire, 8 Can. Cr. Cas. 89 ; Hopkins v. Smith
(1901), lO.L.R. 659.

The criminal law of England on this subject was introduced into
British Columbia by R.S.C. (1886) ch. 144, sec. 2.

A bargain by which A., a stranger to B., having no interest recog-
nized by law in a given property, agrees to help B. to recover such pro-
perty in a Court of justice in consideration of getting a portion of the
fruits of the suit is champerty and is an indictable offence by the com-
mon law of England. Briggs v. Fleutot, 10 B.C.R., at p. 316.

(601)

BOOK THE EIGHTH.

0¥ OITENCES WITH KESPECT TO PUBLIC OPEICE : AND OP
BEIBERY AND COERUPTION OP AND BY OPPICIALS, AGENTS,
PARLIAMENTARY CANDIDATES AND ELECTORS.

CHAPTBE THE FIEST.

OF MISCONDUCT IN OFFICE.

Sect. I. — General Common Law Rule.

Where a public officer is guilty of misbehaviour in office by neglecting
a duty imposed upon him either at common law or by statute, he commits
a misdemeanor and is liable to indictment unless another remedy is
substituted by statute (a). The liability exists whether he is a common
law or a statutory officer (b) ; and a person holding an office of important
trust and of consequence to the public, under letters patent or derivatively
from such authority, is liable to indictment for not faithfully discharging
the office (c). Where a duty is thrown on a body consisting of several
persons, each is individually liable for a breach of duty, as weU for acts
of commission as for omission ; and where a public officer is charged
with a breach of duty, which duty arises from certain acts which he is
bound to take notice of, it is not necessary to state that he had notice
of those acts, for he is presumed from his situation to know them (d).

In some cases also the offence will involve a forfeiture of his office,
if it be beneficial (e).

The present chapter will deal with oppression, negligence, fraud, and
extortion by officers, and with refusal to take up an office on proper
appointment. As to bribery and buying and selling offices, see post,
pp. 619, 627.

Sect. II. — Oppression.

Judicial Officers. — Although a judge is not indictable for mere error
of judgment (/) the oppression and tyrannical partiality of judges and
other magistrates in the administration, and under colour of their offices,

(o) See R. v. HaU [1891], 1 Q.B. 747. Com. Dig. ' Officer ' (K. 2) (K. 3), and

Vide ante, p. 11. Earl of Shrewsbury's case, 9 Co. Rep. 42,

(6) R. vi Wyat, 1 Salk. 380. Anon., 6 50. As to forfeiture by conviction of

Mod. 96. treason or felony, see 33 & 34 Vict. c. 23,

77, 151 : 3 Doug. 327, Lord Mansfield. (/) R. v. Loggen, 1 Str. 74. Anderson v.

And see 1 Salk. 380n. Gorrie [1895], 1 Q.B. 668. And see R. v.

{d) R. V. HoUond, 5 T. R. 607. Nelson, Cockburn's Report.

(e) 4 Bl. Com. 540. 1 Hawk. c. 66, s. 1.

602 Of Offences with Respect to Public Office, [book viii,

may be punished by impeachment in Parliament, or by information or
indictment, according to the rank of the offender and the circumstances
of the offence (g).

High Court. — There are no modern instances of criminal proceedings
against judges of the Supreme Court for misconduct in of&ce (h): They
cannot be removed from office except on address presented by both
Houses of Parliament to the King (i).

Coroner. — ' A coroner ' [or deputy-coroner (/) ] ' who is guilty of extortion
or of corruption or of wilful neglect of his duty or of misbehaviour in the
discharge of his duty shall be guilty of a misdemeanor, and in addition
to any other punishment may, unless his office of coroner is annexed to
any other office, be adjudged by the Court before whom he is so convicted
to be removed from his office ' (k). A coroner is also guilty of a mis-
demeanor if he acts as a solicitor to prosecute or defend a person for
an offence of which he is charged on an inquisition taken before such
coroner (l) ; or if he refuses on the written request of the majority of the
jury to summon as a witness a qualified legal practitioner named by the
jury, or to direct such person to make a post-mortem examination of
the deceased (m). He is also liable to be summarily fined for not returning
inquisitions, depositions, &c.,in cases of murder and manslaughter, to the
proper Court of trial, and for not attending (n) the Court in person (o).

It would seem to be misbehaviour within the Coroners Act, 1887,
to refuse without adequate reason or from improper motives to hold
an inquest (p), or to take an inquisition without view of the body (q), or
to use corrupt influence over the jury (r), or to take sworn jurors off the
panel so as to get from the remaining jurors a verdict of insanity (s).
A criminal information has been allowed against a coroner who on a
jury returning a verdict of accidental death recorded the verdict, but
committed a person to prison on a charge of murder (t) : and it appears
to be misconduct for the coroner to enter the jury room when the j uxors
are deliberating and to take the verdict there (u). A coroner is liable to
a motion by the Lord Chancellor for inability or misbehaviour in office (v).

(g) 1 Bl. Com. 141. As to where the Law, 255 ; Cro. Giro. Comp. (10th ed.) 173,

judge has ahsolutely no jurisdiction, e.g., and see Jervis on Coroners (6th ed.) 59.
where he pronounces an illegal sentence, (p) Be Hull, 6 Q.B.D. 689. -Re Ward,

see Mayne. Ind. Cr. Law (ed. 1896), p. 342. 30 L. J. Ch. 775. As to exhuming a

R. V. Nelson, Cockhum's Report, 124, 156. body too late for an effective view, see B.

(h) See Anderson v. Gorrie, ubi supra. v. Parker, 2 Lev. 140.

(i) 38 & 39 Vict. c. 77, s. 5 (E). 40 & 41 (?) 2 Hale, 270.

Vict. 0. 57, s. 13 (I). {r) R. v. Coates, Dickson, J. P. 515.

(?) 55 & 56 Vict. 0. 56, s. 1 (5). (s) R. v. Stukeley, 12 Mod. 493. Cf. R.

(*) 50 & 51 Vict. u. 71, s. 8 (2). A re- v. Whitcomb, 1 0. & P. 126.
enactment of 25 Geo. II. c. 29, s. 6. (f) R. i>. Scory, 1 Leach, 43. And see

(1) Ibid. s. 10. (m) Ibid. s. 21 (3). 1 Str. 69.

()i) Ibid. s. 9. See Lord Buckhurst's (a) Mitohelstown Inquisition, 22 L. R. Ir.

Case, 1 Keb. 280. 279. And see Jervis on Coroners (6th ed. )

(o) jBeUrwui[1827], Carr. Supp. 17. The 60. As to intoxication during inquest, see

dutiesof a coroner as to holding inquests are R. v. Ward, 30 L, J. Ch. 775. Ex parte

laid down in R. v. Kent JJ., 11 East, 229. Pasley [1842], 3 Dr. & W. (Ir.) 34. As to

R. V. Price, 12 Q.B.D. 247. B. v. Stephenson, recording an inquisition against three when

13 Q.B.D. 331. R. v. Graham [1905], 21 the jurors' verdict was as to one only, R.

T. L. R. 576. See precedents of indict- v. Marsh [1700], 1 Salk. 172. As to ex-

ments against coroners for refusing to take amining witnesses before the jury is sworn,

inquisitions, or for not returning inquisi- see R. v. Whitcomb, 1 C. & P. 124.
tions according to evidence. 2 Chit. Cr. (v) 50 & 51 Vict. c. 71, s. 8 (I).

CHAP. I.] Of Misconduct in Office. 603

County Court Judges.— County Court judges, like all other judges
of inferior Courts, appear at common law to be liable to indictment for
grave misconduct in office. A rule for a criminal information against
a County Court judge for misconduct in office was discharged on the
ground that the appHcant had already elected his remedy by applying
to the Lord Chancellor to inquire into the alleged misconduct (w).

Colonial Judges. — Judges of a Colonial Court directly appointed by
the Crown are liable to amotion for misconduct (a;).

Justices of the Peace. — Justices of the peace have often been held
liable to criminal information for fraud or misconduct in office, which
could not be excused by mistake or ignorance of law {y). As a general
rule justices are not punishable for acts done at general or quarter
sessions (2), but there are some precedents in respect of such acts {a).
But with respect to the acts of justices in petty sessions or out of sessions
the precedents are numerous (6).

Though a justice of the peace should act illegally, yet if he has acted
honestly and candidly, without oppression, malice, revenge, or any bad
view or ill-intention whatsoever, the Court will never punish him by
the extraordinary course of a criminal information, but will leave the
party complaining to his ordinary remedy by action or indictment (c).
And whenever the acts or defaults of justices have been challenged,
either by way of indictment, or application for a criminal information,
the question has always been, not whether the act done might, upon
full and mature investigation, be found strictly right, but from what
motive it had proceeded ; whether from a dishonest, oppressive, or cor-
rupt motive {d), ' under which description fear and favour may generally
be included,' or from mistake or error. In the former case alone they
have become the objects of punishment (e).

Precedents of indictments are very rare, it being obviously more
seemly and expedient that criminal proceedings against justices should
be conducted in the High Court, and aUqwed only in the cases where
the conditions imposed by the Crown Office Eules, 1906, rr. 35-39, are
satisfied.

A large number of the precedents of criminal proceedings against
justices relate to their conduct in the quasi- judicial functions as to

(w) R. V. Marshall, 4 E. & B. 475. Ex ford JJ., 2 W. Bl. 432. R. v. Phelps, 2 Ld.

parte Ramshay, 18 Q.B. 173. By the Kenyon, 570. R. v. Davie, 2 Dougl. 588.

County Courts Act, 1888 (51 & 52 Viot. Staundf. P. C. 173.

c. 43), S3. 15, 50, 51, provision is made for (6) R. v. Mather, 2 Barnard. (K.B.) 249

amotion of judges and ofBoers of county (an obviously illegal order for whipping a

courts for misconduct. woman). R. v. Brooke, 2 T. R. 190 (caprioi-

(x) 22 Geo. III. c. 75. Willis v. Gippa, ously discharging a vagrant committed by

G St. Tr. (N. S.) 311. Re Sanderson, 6 anotherjustice). R. d. Webster, 3 T. R. 388.

Moore, P. C. 38. And see 6 Moore, P. C. R. ?;. Badger, 4 Q.B. 468, 472 (refusal of bail

(N. S.) App. As to Canadian judges, see inwiUuldefianceofthelaw). R.w.Dodgson,

30 & 31 Viot. 0. 3, s. 99. 9 A. & E. 704 (conviction in face of a claim

(y) Fic^eShort&MeUor, Cr. Pr. (2nded.) of a right). Sa; parte Higgins, 10 Jur. 838

158. (wilful refusal to receive legal evidence).

(z) R. V. Seton, 7 T. R. 373, Kenyon, C.J. (c) R. v. Palmer, 2 Burr. 1162. Vide 1

See R. V. Colam, 20 W. R. 331, Blackburn, Bl. Com. 354, n. (17).
J. R. V. Venables, 2 lA. Raym. 1407 ; 8 [d) Ex 'parte Fentiman, 2 A. & E. 127,

Mod. 378 n. 129, Patteson, J.

(a) SeeR.i;. Shrewsbury JJ., 2 Barnard (e) R. v. Borron, 3 B. & Aid. 432, 434,

272. R. V. Eyres, ibid. 250. R. v. Sea- Abbott, C.J. Cf. 1 Bl. Com. 354, n. (17).

604 Of Offences with Respect to Public Office, [book viii.

granting or refusing licences to sell intoxicants. Though upon this subject
the justices have a discretionary jurisdiction, and though discretion
means the exercising the best of their judgment upon the occasion that
calls for it, wilful abuse of such discretion is criminal (/). The High
Court can therefore grant an information against justices who refuse,
from corrupt and improper motives, to grant such licences (g) ; or for
granting such licences improperly (h).

Where two sets of justices had concurrent jurisdiction, and one set
appointed a meeting to grant ale licences, and, after such appointment,
the other set appointed a meeting for the same purpose on a subsequent
day, and having met, granted a licence which had been refused by the
first set ; it was held that the acts of the justices who appointed the
second meeting were illegal and indictable. Kenyon, C.J., said that
it was proper that the question should be settled whether it were legal
for two different sets of magistrates, having concurrent jurisdiction, to
run a race in the exercise of any part of their jurisdiction ; and that it
was of infinite importance to the public that the acts of magistrates
should not only be substantially good, but also that they should be
decorous. And Ashhurst, J., said that it was a breach of the law to
attempt to wrest the jurisdiction out of the hands of the magistrates
who first gave notice of the meeting ; for what the law says shall not be
done, it becomes illegal to do, and is therefore the subject-matter of an
indictment, without the addition of any corrupt motives (i).

Jurors. — Misconduct by jurors sworn to try a civil or criminal cause
is an offence usually punished summarily by fine for contempt of Court (/),
but is apparently indictable if the misconduct is grave or involves actual
corruption (k). Every juror who shall wilfully or corruptly consent to
embracery (l) may be proceeded against by indictment or information,
and is punishable by fine and imprisonment (m). It would seem that
evidence of jurors is not admissible to prove misconduct by the jury or
any juror in the jury room (n).

Executive and Ministerial Officers. — An indictment or criminal in-
formation will lie against executive or ministerial officers for oppression
or for illegal acts done corruptly or from vindictive or otherwise improper
motives, but not for acts done by ignorance or mistake (o).

Churchwardens.— By the Vestries Act, 1831 (1 & 2 Will. IV. c. 60),
s. 11, 'if any churchwarden, rate-collector, overseer, or other parish officer,
shall refuse to call meetings according to the provisions of this Act, or

(/) R. V. Young, 1 Burr. 556, 560. of an issue with the object of giving their

ig) K. V. Williams, 3 Burr. 1317. The verdict for the defendant,

licences vfere refused because the appUoants (I) Vide ante, p. 598.

would not give their votes for members of (m) 6 Geo. IV. c. 50, s. 61 (E) : 34 & 35

Parliament, as the justices would have had Vict, i>. 65, s. 49 (I). And see R. v.

them. Cf. R. v. Hann, ibid. 1716, 1780. Young, 2 East, 14, 16, cit.

(h) R. V. Holland, 1 T. R. 692. (n) Vide Jackson v. WiUiamson, 2. T. B.

(i) R. V. Sainsbury, 4 T. R. 451. 281, followed in R. v. Mullins, 6 Canada

(?) R. V. Brown [1907], 7 N. S. W. State Or. Cas. 363. And see Taylor, Ev. (10th

Rep. 290, 300, 301, where the English ed.), s. 944. In R. v. Brown [1907], 7

authorities are collected and discussed. N. S. W. State Rep. 296, the Court, after con-

(k) See I Hawk. c. 85, a. 4. See R. v. sidering all the authorities, held the evidence

Opie, 1 Wms. Saund. 301. Indictment for of fellow jurors inadmissible to establish

a conspiracy to procure certain of the con- misconduct by a juror in a criminal case,

spirators to be sworn as jurors on the trial (o) R. v. Friar, 1 Chit. Rep. (K.B.) 702.

CHAP. L] Of Misconduct in Office. 605

shall refuse or neglect to make and give the declarations and notices
directed to be made and given by this Act, or to receive the vote of any
ratepayer as aforesaid, or shall in any matter whatsoever alter, falsify,
conceal, or suppress any vote or votes as aforesaid, such churchwarden,
rate-collector, overseer, or other parish officer, shall be deemed and
taken to be guilty of a misdemeanor ' {f).

The civil functions of churchwardens in rural parishes have been
transferred to parish councils or to the chairman of the parish meeting, and
they are no longer overseers of the poor {q). Their remaining functions
are mainly, if not solely, ecclesiastical, and they would seem no longer to
be public officers in the full sense of the term.

Clergymen. — ^It would seem that it is not an indictable offence for
a clergyman to refuse to marry a couple (r). There is specific statutory
provision for punishing breaches by clergymen of the Marriage Acts (s).

Constables. — An indictment lies at common law against a constable
for neglecting the duties required of him by common law or by statute {t) ;
and when a statute requires him to do what without requiring had
been his duty, it is not imposing a new duty, and he is indictable at
common law for the neglect (m).

Gaolers. — 14 Edw. III. c. 10 {v), enacted that if any gaoler, by
too great duress of imprisonment, makes any prisoner that he hath in
ward become an aff rover against his will ; that is, to accuse and turn
evidence against some other person ; it shall be felony in the gaoler.
For it is not lawful to induce or excite any man even to a just accusation
of another ; much less to do it by duress of imprisonment ; and least of
all by a gaoler to whom the prisoner is committed for safe custody (w).
And a gaoler may be discharged and fined for voluntarily suffering his
prisoner to escape, or for barbarously misusing him {x). So, a gaoler
is indictable for refusing to receive a prisoner duly committed by a
magistrate («/).

Poor Law Offleers. A. Misfeasance. — Overseers and other officers of
the poor law are usually punished summarily for offences with regard

(p) This section was repealed in 1894 (56 punished under the Police Acts. See 2 & 3

& 57 Vict. c. 73) as to parish meetings, and Vict. c. 93, s. 12 ; 22 & 23 Vict. o. 32, s. 26

had previously been repealed as to London (county) ; 2 & 3 Vict. c. 47, s. 14 (metro-

in 1855 (18 & 19 Vict. c. 120). polis) ; 10 & 11 Vict. c. 89, s. 16 (towns) ;

(q) Local GovemmentAct, 1894 (56 & 57 45 & 46 Vict. c. 50, a. 194 (municipal

Vict. c. 73), ss. 5, 6, 19. boroughs). As to taking gratuities, see

(r) R. ^. James, 2 Den. 1 ; 3 C. & K. 167. Chisholm v. Holland, 50 J. P. 197.

The indictment seemed open to several (u) R. v. Wyat, 1 Salk. 380 : 2 Ld.

objections. It did not aver that the parties Raym. 1 189.

might lawfully marry ; or that the clergy- (v) Repealed in 1863. (S. L. R.)

man was required to perform the ceremony (w) 4 Bl. Com. 128. 3 Co. Inst. 91.

at a lawful time, between the appointed (x) 1 Hawk. c. 66, s. 2. Vide, ante,

hours. Strong intimations were thrown p. 556, ' Escape.'

out that a refusal to marry is merely an (y) R. v. Cope, 6 A. & E. 226 ; 1 N. & P.

ecclesiastical offence. See the Deceased 515 ; 7 C. & P. 720. See the form of in-

Wife's Sister's Marriage Act, 1907 (7 Edw. dictment there. The indictment was in

VII. 0. 47), B. 1. substance brought to try the question

(s) Vide post, p. 1015 et seq. whether under a gaol Act (4 Geo. IV. c. 64)

{t) R. V. Wyat, 1 Salk. 380. Crowther's the Court of Aldermen of the City of Lon-

case, Cro. Bliz. 654 ; indictment against a don had authority to exclude from Newgate

constable for refusing to make a hue and gaol prisoners committed by the Middlesex

cry after notice of a burglary. Neglect of justices,
duty by the police created by statute is

606 Of Offences with Respect to Public Office, [book viii.

to their duties (z). But an overseer of the poor is indictable for mis-
feasance in the execution of his office (a) ; if he misuse the poor, as by-
keeping and lodging several poor persons in a filthy, unwholesome room,
with the windows not in a sufficient state of repair to protect them
against the inclemency of the weather (b) or by exacting labour from
them when they are unable to work (c). Overseers have been held
indictable for neglecting to provide necessaries for the poor (d), including
medical assistance (e). A relieving officer has been held to be indictable
for refusing medical assistance to a poor person (/). If overseers procure,
or contrive by sinister means to prevail upon, a man to marry a pregnant
woman, for the purpose of throwing the expense of maintaining her and
the issue from themselves upon another parish or township, they may be
indicted (gr). And for most breaches of their duty overseers may be
punished by indictment or information (h) : but with respect to the
proceeding by information, as it is an extraordinary remedy, the Court
of King's Bench will not suffer it to be applied to the punishment of
ordinary offences (^').

An indictment against overseers on sect. 47 of the Poor Law Amend-
ment Act, 1834 (4 & 5 Will. IV. c. 76), for not accounting to the auditor of a
union, upon request, on a day appointed by him, is bad, unless it appear
that there was some rule, order, or regulation of the Local Government
Board that the overseers should account upon such request ; and where
no such order, &c., is alleged, the indictment cannot be sustained after
verdict, merely because it appears, by inference, or by the inducement,
that the defendants have not in fact accounted for one whole quarter (/).

An overseer of the poor is not indictable if (without force, fraud or
menace) he removes a pauper under an order of removal after it has been
confirmed on appeal by the sessions, subject to the opinion of the High
Court, and before its final determination hj that Court. The Coiirt said
that the action of the overseers was not a violation of any known rule or
law (k).

As to wiHul neglect bv an overseer of his duties under the Eegistration
Acts, see E. v. HaU [1891], 1 Q.B. 747, ante, p. 11.

B. Negligence. — An overseer of the poor is indictable for wilful neglect
of duty. Thus overseers have been held indictable for not providing for the
poor (I) ; for refusing to account within four days after the appointment

(2) Archbold's Poor Law (15th ed., by 1 Bott. 360, pi. 377 : 2 Nol. 474. From

Brooke Little), 165. these authorities it appears that an indict-

(a) Tawney's case, 16 Vin. Abr. 415 (not ment will lie even in some oases where a

providing for the poor, or relieving them particular punishment is created by statute

when there is no necessity). 1 Bott. 358, and a specific method for recovering the

pi. 371. penalty is pointed out. But as to this, see

(6) R. V. Wetherill, Cald. 432. ante, p. 11.

Mansfield. (j) R. v. Crossley, 10 A. & E. 132 ; 2 P.

{d) R. V. Booth, R. & R. 47. & D. 319. It is left undecided how far

(e) R. V. Meredith, R. & R. 46. disobedience of an order to account made

(/ ) R. V. Curtis, 15 Cox, 746. under s. 98 is indictable. 10 A. & E. 138,

(g) R. V. Compton, Cald. 246. R. v. Patteson, J.
Tarrant, 4 Burr. 2106 ; and R. v. Herbert, (k) R. v. Cooper, 3 Sess. Cas. 346.

1 East, P. C. 461. (/) 2 Nolan, 475. Tawney's case, 1

(h) R. V. Commings, 1 Bott. 357, pi. 370. Bott. 358, pi. 371. R. v. Winship, Cald. 72.
R. V. Robinson, 2 Burr. 799. R. v. Jones,

CHAP. I.] Of Misconduct in Office. 607

of new overseers, under the Poor Law Act, 1601 (43 Eliz. c. 2) (m) ;
for not making a rate to reimburse constables under the Poor Relief Act,
1662 (14 Car. II. c. 12) (n) ; and for not receiving a pauper sent to them
by order of two justices (o) ; or disobeying any other order of justices,
where the justices have competent jurisdiction {f). There may be cases
in which the neglect to provide a pauper with necessaries is indictable.
Thus where an indictment stated that the defendant, an overseer, had
under his care a poor person belonging to his township, but neglected
and refused to provide for her necessary meat, &c., whereby she was
reduced to a state of extreme weakness, and afterwards, through want
of such reasonable and necessary meat, &c., died, the defendant was
convicted and sentenced to a year's imprisonment (q). And where an
overseer was indicted for neglecting to supply medical assistance when
required to a pauper labouring under dangerous iUness, it was held that
an ofience was sufficiently charged and proved, though such pauper was
not in the parish workhouse, nor had previously to his illness received
or stood in need of parish relief (r).

Sheriffs.— By the Sheriffs Act, 1887 (50 & 51 Vict. c. 55), s. 29—

' (1) If a person being a sheriff, under-sheriff, bailiff, or officer of a
sheriff, whether within a franchise or without, does any of the following
things, that is to say : — ■

(a) Conceals or procures the concealment of any felon ; or

(6) Refuses to arrest any felon in his bailiwick ; or

(d) Is guilty of an offence against or breach of the provisions of this
Act ;

He shall (without prejudice to any other punishment under the
provisions of this Act) be guilty of a misdemeanor, and be liable on
conviction to imprisonment for a term not exceeding one year and to pay
a fine, or, if he has not wherewith to pay a fine, to imprisonment not
exceeding three years.

(2) If any person being either a sheriff, under-sheriff, bailiff, or officer
of a sheriff, or being employed in levying or collecting debts due to the
Crown by process of any Court, or being an officer to whom the return or
execution of writs belongs, does any of the following things, that is to
say : —

(a) Withholds a prisoner bailable after he has offered sufficient
security ; or

(b) Takes or demands any money or reward under any pretext
whatever other than the fees ot sums allowed by or in pursuance of this
or any other Act ; or

(m) R. V. Commings, 5 Mod. 179 ; 2 Not. justiees have no jlirigdiction, B. v. Smith,

453, 476, where it is observed in the note 1 Bott. 415, pi. 461.
(3) that this case occurred prior to 17 Geo. (q) R. v. Booth, R. & R. 47, note {a).

11. 0. 38. (r) R. V. Warren, cor. Holroyd, J.,

(«) R. V. Barlow, 2 Salk. 609 ; 1 Bott. Worcester Lent Assizes, 1820. See Hays

357, pi. 369. V. Bryant, 1 H. Bl. 253. R. v. Meredith,

(o) R. V. Davis, 1 Bott. 361, pi. 378 ; R. & R. 46. For an indictment against a

Say. 163. relieving ofScer for refusing to supply

(p) Vide ante, p. 543. 2 Nol. 476. R. v. medical assistance, see R. v. Curtis, 15 Cox,

Boys, Say. 143. But otherwise where the 746.

608 Of Offences with Respect to Public Office, [book viii.

(d) Is guilty of any offence against or breach of the provisions of this
Act, or of any wrongful act or neglect or default in the execution of his
office, or of any contempt of any superior court ;

He and any person procuring the commission of any such offence
shall, without prejudice to any other punishment under the provisions
of this Act, but subject as hereinafter mentioned, be liable—

(i) To be punished by the Court as hereinafter mentioned, and

(ii) To forfeit two hundred pounds, and pay all damages suffered by
any person aggrieved.

And such forfeiture and damage may be recovered by such person as
a debt by an action in his Majesty's High Court of Justice.

(3) Any of the following courts, that is to say, his Majesty's High
Court of Justice, any Court of Assize, Oyer and Terminer or gaol delivery,
or any judge of any of the said Courts, also where the alleged offence has
been committed in relation to any writ issued out of any other court of
record than those above mentioned, the Court out of which such writ
issued may, on complaint made of any such offence as aforesaid having
been committed and on proof on oath given by the examination of
witnesses or by affidavit or on interrogatories of the commission of the
alleged offence, and after hearing an)rthing which the alleged offender
may urge in his defence (which evidence and hearing may be taken and
had in a summary matter), punish the offender or cause proceedings to
be taken for his punishment in like manner as a person guilty of contempt
of the said Court may be punished.

(4) The Court may order the costs of or occasioned by any such
complaint to be paid by either party to the other, and an order by the
High Court of Justice in any such summary proceeding to pay any costs,
damages, or penalty, shall be of the same effect as a judgment of the
High Court, and may be enforced accordingly.

(5) Any of the said Courts being a superior Court of record may also
proceed for and deal, with such offence in like manner as for any contempt
of such Court.

(6) If any person not being an under-sheriff, bailiff, or officer of a
sheriff, assumes or pretends to act as such, or demands or takes any fee
or reward under colour or pretext of such office, he shall be Hable to be
punished in manner provided by this section as if he were an under-
sheriff guilty of a contempt of Court.

(7) Any proceeding in pursuance of this section against a sheriff,
under-sheriff, or any other person to whom this section applies shall be
taken within two years after the alleged offence was committed, and not
subsequently, and if the proceeding is in a summary manner shall be taken
before the end of the sittings of the Court held next after the offence
was committed and not subsequently.

(8) Nothing in this section shall render a person liable to be punished
twice in respect of the same offence, but if any proceeding is taken against
a person under this section for any offence the Court or Judge may
postpone or stay proceedings and direct any other available proceeding
to be taken for punishing such offence.'

CHAP. I.] Of Misconduct in Office. 609

A sheriff is indictable for refusing or neglecting to execute a criminal
according to his sentence (s) ; but lie is not bound to execute a criminal
if he be not in his custody, and in such case, if it is intended by the Court
which passed the sentence that the sheriff should do execution, there
should be a special mandate to the party having the prisoner in custody
to deliver him to the sheriff, and another to the sheriff to receive the
prisoner and execute him {t).

Misconduct hy Crown Officials outside Great Britain.

There is a series of statutes providing for the trial in England of
officers of the Crown who have committed certain classes of offences in
connection with their office outside Great Britain.

By an Act of 1698 (11 Will. III. c. 12) entitled ' an Act to punish
Governors of Plantations in the Kingdom for crimes by them committed
in the plantations,' it is enacted (u) that ' If any governor, lieutenant-
governor, deputy governor, or commander-in-chief of any plantation
or colony within his Majesty's dominions beyond the seas shall ... be
guilty of oppressing any of his Majesty's subjects beyond the seas within
their respective Governments or commands or shall be guilty of any other
crime or offence contrary to the laws of the realm or in force within their
respective governments or commands, such oppressions, crimes and
offences shall be inquired of, tried and determined in his Majesty's
Court of King's Bench here in England, or before such commissioners
and in such county of this realm as shall be assigned by his Majesty's
commission and by good and lawful men of the same county and that
such punishments shall be inflicted on such offenders as are usually
inflicted for offences of like nature committed here in England.' The
Act contains no machinery for bringing the offender home nor for
collecting evidence in the colony and applies only to governors and
commanders-in-chief.

By the Criminal Jurisdiction Act, 1802 (42 Geo. III. c. 85), after reciting
the Act of 1698 and Acts of 1773 and 1784 relating to India (v), it is enacted
(sect. 1) that ' if any person who now (June 22, 1802) is or heretofore
has been or shall hereafter be employed by or in the service of his Majesty
his heirs or successors in any civil or military station, office, or capacity
out of Great Britain, or shall heretofore have had, held or exercised or
now has, holds, or exercises, or shall hereafter have, hold, or exercise any
public station, office, capacity, or emplojTiient, out of Great Britain,
shall have committed, or shall commit, or shall have heretofore been, or is,
or shall hereafter be, guilty of any crime, misdemeanor, or offence in the
execution, or under colour, or in the exercise of any such station office
capacity or employment as aforesaid, every such crime offence or
misdemeanor may be prosecuted or inquired of, and heard and determined

(s) See Sheriffs Act, 1887, s. 13. been deterred from oppressing his Majesty's

(() R. 0. Antrobus, 2 A. & E. 788, 803, subjects within their several governments,

Denman, C.J. nor from committing several other great

(u) The preamble recites that due pun- crimes and offences, not deeming them-

ishment was not provided for several selves- punishable for the same here nor

crimes committed out of the realm of accountable therefor to any person within

England, and that divers governors, &c., their respective governments,

had taken advantage thereof, and had not (v) Post, p. 610.

VOL. I, 2 E

610 Of Offences with Respect to Public Office, [book viii.

in tis Majesty's Court of King's Bench here in England, either upon an
information exhibited by his Majesty's Attorney-General, or upon
an indictment found, on which information or indictment such crime,
offence or misdemeanor, may be laid and charged to have been committed
in the county of Middlesex, and all such persons so offending, and also
all persons tried under any of the provisions of the said recited Act [of
1698, supra] or this Act, or either of them, for any offence crime or mis-
demeanor, and not having been before tried for the same out of Great
Britain, shall on conviction be liable to such punishment as may by any
law or laws now in force, or any Act or Acts that may hereafter be passed,
be inflicted for any such crime, misdemeanor, or offence committed in
England and shall also be liable, at the discretion of his Majesty's
Court of King's Bench, to be adjudged incapable of serving his Majesty
in any station, office, or capacity, civil or military, or of holding or
exercising any public employment whatever.'

Sects. 2, 3, 4 make provision for the issue of writs of mandamus to
Courts or persons in the country where the offence was committed for
the taking of evidence in support of the matters charged against the
accused, and for the transmission to the Court of King's Bench of the
depositions or answers to interrogatories. Sect. 5 makes provision for
punishing wilful and corrupt false evidence as perjury under the law of
the kingdom (w), island or place in which the evidence is taken.

This statute appears to apply to the whole of the King's dominion
outside Great Britain. It has been held not to apply to felonies, but only
to misdemeanors {x). It has been used to try colonial governors for
alleged oppressions and illegalities (y), and to try officers for frauds on
the Crown (z).

India. — There is also a series of statutes applying to official misconduct
in India, all passed while that country was still in the hands of the East
India Company, but still in force. The statutes are 10 Geo. III. c. 47,
s. 4; 13 Geo. III. c. 63, s.39; 21 Geo. III.c. 70, s. 7; 24 Geo. III. (sess. 2),
c. 25, ss. 64-83 (a) ; 33 Geo. III. c. 52, ss. 62, 63-67,140, 162 ; 3&4Will.
IV. c. 85, s. 80 (&). The offences are made triable in the High Court of
Justice in Middlesex within a time variously limited after the commission
of the offence or the return of the official to England.

The East India Company Act, 1793 (33 Geo. III. c. 52), s. 62, enacts
that ' the demanding or receiving any sum of money, or other valuable
thing, as a gift or present, or under colour thereof, whether it be for the
use of the party receiving the same, or for or pretended to be for the use
of the said [East India] Company, or of any other person whatsoever, by
any British subject holding or exercising any office or employment under
his Majesty, or the said united Company in the East Indies, shall be
deemed to be extortion and a misdemeanor at law, and punished as
such. . . .' The offender is also to forfeit to the King the present so
received, or its full value ; but the Court may order such present to be

M Thia apparently refers to Ireland. son [1900], noted in Short & Mellor, Cr.
S. 2 naa country, island or place. Pr. (2nd ed.) 85

(x) B. V. Shawe, 5 M. & S. 403. („) gee R. „. Hollond 5 T R 607

(y) R.,,.EyreLR3(^B 487 (Jamaica). (6) They are collected and summarised

Picton's case, 30 St. Tr. 225 (Tnmdad). m Ilbert, Government of India (2nd ed )

(z) R, V. Tvimer [1889], R. v. Hodgkin- 255, 258. ^ ''

CHAP. 1.1 Of Misconduct in Office. 611

restored to the party who gave it, or may order it, or any part of it, or
of any fine which they shall set upon the offender, to be paid to the
prosecutor or informer (sect. 63).

An ex-officio information charged that the defendant, a British subject,
held for a long time the office of resident at Tanjore, and during all that
time resided in the East Indies, and that whilst he held the said office,
and within six years before the filing of the information, in the East
Indies, he did unlawfully receive from a certain person in the East Indies
a sum of 2,000 rupees, as a gift and present, against the statute ; whereby
he was guilty of extortion and a misdemeanor, and by force of the statute
had forfeited the sum of £200, the value of the said rupees ; and the
Court of Queen's Bench held that it was no ground to arrest the judgment
that the count did not state whether the rupees were Bombay, Madras,
or Sicca rupees, or state the value of a single rupee ; and that Court and
the Court of Exchequer Chamber held that the count was good, although
it did not aver that the gift was received by way of extortion or under
colour of the office : first, because, supposing the statute were confined
to such cases, the information was made good after verdict by the sect. 21 of
the Criminal Law Act, 1826 (7 Geo. IV. c. 64), as it described the offence
in the words of the statute creating it ; and secondly, because the Act of
1793 extended to any receipt of a gift by any officer ; for the object of the
Legislature was to prevent any officer from receiving any gift or present
of money in the Bast Indies absolutely, whatever the reason of the gift
might be ; and, although the count did not allege for whose use or
pretended use the gift was received ; for even if an officer received a
present under colour of its being a present to the Queen, he would be
guilty of an offence within "the statute (c).

Indictment. — Upon an indictment against an officer for neglect of
duty, it is sufficient to state that he was such officer, and it is not necessary
to state his appointment (d). The indictment need not aver that the

(c) R. V. Douglas, 13 Q.B. 42. The jury gift itself was money ; 2ndly, that it was
had found a verdict on several counts, right to estimate the value at the time of
charging receipts of sums in rupees as gifts, the receipt, and not of the conviction ;
after which followed a finding as to each 3rdly, that imprisonment in default of pay-
count severally that the sum received, as ing the forfeiture was rightly awarded, as
in the count mentioned, was the sum of so that forfeiture was not arbitrarily imposed
many rupees, which sum of rupees, at the by the Court, but fixed by the statute, and
time of receiving thera, was of the value of superadded, by authority of the statute, to
so much British money, being at the rate the other punishments of the offence. The
of Is. lid. per rupee, and the Court of Courtof Queen's Bench held that the altera-
Queen's Bench adjudged fine and imprison- tions in the Madras Courts made by
ment separately upon each count upon several statutes did not preclude the issuing
which the defendant was convicted ; and of a mandamus under the East India Com-
further, that the defendant, in pursuance pany Act, 1773 (13 Geo. III. c. 63, s. 40),
of the statute, do also forfeit to the Queen to examine witnesses, to the Madras Court
the several sums following (naming the as finally constituted, and that such a man-
value of the sums in rupees, as found on damus directed to the Chief Justice and
each count respectively), the said forfeit- other judges, who were two, of the Madreia
ures amounting together to the sum of (the Supreme Court, requiring them to hold a
aggregate of the values) ; and further, that Court and examine witnesses, was well
the defendant be imprisoned until he shall executed by the Chief Justice and one
have paid the said fines and forfeitures. other judge. See also this case as to what
And the Court of Exchequer Chamber held, parchment writings are such examinations
1st, that this judgment was good, although as are required by the Act to be returned
it did not give the defendant the option of to such a mandamus,
forfeiting the gifts actually received, as the (d) R. v. HoUond, 5 T. R. 607. This

2e2

612 Of Offences with Respect to Public Office, [book viii.

defendant had notice of all the facts it states, if it was his duty to have
known them (e). Where some of the charges against the defendant were
for disobeying orders, and it was stated that those orders were made and
communicated to him, but their continuance in force was not averred,
it was ruled that the orders must be taken to continue in force until
revoked (/).

Sect. III.— Fraud,

General. — A public of&cer may be indicted for frauds committed in
his official capacity. Thus where two persons were indicted for enabling
others to pass their accounts with the pay office in such a way as to
enable them to defraud the Government, though it was objected that it
was only a private matter of account and not indictable, the Court held
otherwise, as it related to the public revenue (g). And an indictment
or criminal information wiU lie for failing to account for money received
virtute officii (h) ; for defrauding the Crown in the purchase of stores by
means of false vouchers (i) and generally for frauds in office (j), whether
the officer is employed in England or in a British possession (k), or even
in a foreign country (I). As to offences outside the realm and in India,
vide ante, pp. 609, 610.

Justices' Clerks. — A justices' clerk has been held to be indictable for
refusing to pay over to the county treasurer half of the penalty imposed
by justices under sect. 26 (now repealed) of the Alehouse Act, 1828
(9 Geo. IV. c. 61) (m).

Overseers. — An overseer of the poor who had received from the
putative father of a bastard child born within the parish a sum of money
as a composition with the parish for the maintenance of the child, was
held liable to indictment for fraudulently omitting to give credit for this
sum in his accounts with the parish (n). It was objected that the defen-
dant was not bound to bring this sum to account, the contract being
illegal (o) ; that the whole might have been recovered back, and that
the defendant himself would have been personally answerable for it to the
putative father ; that the money, therefore, was not the money of the
parish, and that the parish was neither defrauded nor damnified by its
being omitted in the overseer's accounts. But Lord Ellenborough was
of opinion, that though the defendant would have been liable to the
putative father for so much of the money as was not expended upon the
maintenance of the child and the lying-in of the mother, yet having

was an indictment under the East India (i) R. v. Davison, 31 St. Tr. 99.

Company Act, 1784 (24 Geo. III. c. 25). (j) R. v. Jones, 8 East, 31. R. v.

Tiie statute made wilful neglect of duty a Hedges, 28 St. Tr. 1315. R. v. Hollond,

misdemeanor ; and it was held that the 5 T. R. 607.

indictment need not aver corruption. (k) K. v. Jones, libi supra. R. v. Mun-

Ss. 1-63 of the Act were repealed in 1872 ton, 1 Esp. 62.

(35 & 36 Vict. c. 63). (l) R. v. Turner [18891, 24 L. .J. Newsp.

(e) R. V. Hollond, ubi supra. 466, 469, 479 (a British official in South

(/) Id. ibid. America). R. v. Hodgkinson, ubi supra

{cj) R. V. Bembndge, 20 St. Tr. 1, vide (the case of a British consul in Germany).

ante, p. 601. R. v. Baxter [1851], 5 Cox, (m) R. v. Dale, Dears. 47.

302, and MS. C. S. G., Patteson, J. (n) R. v. Martin, 2 Camp. 268

(h) R. V. Hodgkinson (Q.B.D.). June 26, (o) See Townson v. Wilson, I Camp 396

1900, Archb. Ci'. PI. (23rd ed.) 1014. ^'

OHAP. I.] Of Extortion. 613

taken the money as overseer for the benefit of the parish, he was bound to
bring it to account, and that he was guilty of an indictable offence by
attempting to put it into his own pocket.

Wilful disobedience by overseers, assistant overseers, and officers of a
parish or union to the legal and reasonable orders of justices and guardians
in carrying to execution the Poor Law Acts or orders is summarily punish-
able by statute {f).

Wilful neglect of the rules, regulations or orders of the Local
Government Board under the Poor Law Acts is also punishable by
statute, and on the third oSence as a misdemeanor or indictment by fine
of not less than £20 and imprisonment {q).

Registrars. — By the Yorkshire Eegistries Act, 1884 (47 & 48 Vict,
c. 54), s. 46, ' If any registrar or other person employed in the register
office is party or privy to any act of fraud or collusion in relation to the
registration of any assurance, will, or other instrument under this Act, or
the giving of any certificate or copy, or the making of any search or the
taking of any extract or copy under this Act, or any rules made there-
under, he shall be guilty of a misdemeanor and shall upon conviction on
indictment be liable to imprisonment with or without hard labour for
any period not exceeding two years.

Sect. IV. — Extoetion.i

Extortion in a large sense signifies any oppression under colour of
right : but in a more strict sense signifies the unlawful taking by any
officer, by colour of his office, of any money or thing of value that is not
due to him, or more than is due, or before it is due (r).

The offence of extortion is a misdemeanor at common law punishable
by fine and imprisonment : and also by removal from the office in the
execution whereof it was committed (s). It was regarded of special
gravity when officers of the law took money for their judgments or for
the release of prisoners in their custody (<).

By 3 Edw. I. {Stat. West, prim.), c. 26 (1275), it is enacted that ' no
sheriff nor other the King's officer take any reward to do his office, but shall
be paid of that which they take by the King ; and he that so doth shall

(j)) 4 & 5 Will. IV. c. 76, 3. 95. Ci. 17 102.
Geo. II. c. 38, s. 14. (s) 1 Hawk. o. 68, s. 5. Bao. Abr. tit.

(g) 4 & 5 Wm. IV. 0. 76, a. 96. ' Extortion.'

(r) 1 Hawk. o. 68, s. 1. 1 Bl. Com. (i) See Beawfage's case, ubi sujyra.

141. Beawfage's case, 10 Co. Kep. 100,

Ambkioan Note.

1 As to extortion in America, see Wil- tyre, 3 Irel. 171, 174 ; S. v. Sellers, 7 Eieli.

liams V. Sneed, 160 ; S. v. Brown, 12 Minn. 368, 372 ; P. v. Cook, 4 Seld. 67, 59 Am. Dec.

490 ; P. V. Bust, 1 Caines, 130 ; 0. v. Bay- 451. This is said to follow from the maxim

ley, 7 Pick. 279. There are many statutes ' omnia presumuntnr rite esse acta ' where a

in America which deal with this offence. man is doing a lawful thing, and it is pre-

Bishop Amer. Cr. L. ii. s. 404. sumed to be done lawfully ; but if a man

It seems that in America a person who does an unlawful act it cannot be pre-

is not an officer, but who serves as such and sumed that he does it lawfully. Some of-

claims to be such, is estopped from denying fences are in America called ' extortion '

his official appointment. Bishop, ii. s. 392, where the defendant cannot be called an

citing 1 Gab. Crim. Law, 783 ; S. v. Moln- officer at all, see Bishop, ii. s. 392,

614 Of Offences ly Persons in Office. [book vttt.

yield twice as much and shall be punished at the King's pleasure ' {u).
An action lies to recover the double value («). This enactment is repealed
as to sheriffs and their officers by the Sheriffs Act, 1887 (50 & 51 Vict,
c. 55), and replaced by sect. 29 (2) of that Act, ante, p. 607, and is super-
seded as to coroners by sect. 8 (2) of the Coroners Act, 1887 (50 & 51 Vict.
0. 71). As to extortion by Indian officials, see 33 Geo. III. c. 52, s. 62,
ante, p. 610.

Where a collector of post-horse duty demanded a sum of money of a
person, charging with having let out post-horses without paying the
duty, and threatened him with an Exchequer process, and he thereon
gave him a promissory note for five pounds, which was afterwards paid
and the proceeds handed over to the farmer of the post-horse duties, it
was held to be extortion [w).

OfQeial Fees. — Justices of the peace are bound by the old form of
their oath of office (a;) to take nothing for the execution of their office
but of the King, and fees accustomed, and costs limited by statute.
And no public officer may take any other fees or rewards for doing
anything relating to his office than some statute in force gives him, or such
as have been anciently and accustomably taken ; and if he does otherwise,
he is guilty of extortion (y). All prescriptions contrary to the statute
and to the common law have always been held void ; as where the
clerk of a market claimed certain fees as due time out of mind for the
examination of weights and measures {z).

The stated and known fees allowed by courts of justice to their
respective officers are not restrained by the common law, or by 3 Edw. I.
c. 26, supra, and at common law may be legally demanded and insisted
upon without extortion {a). An officer who takes a reward, voluntarily
given to him, and usual in certain cases, for the more diligent or
expeditious performance of his duty, cannot be said to be guilty of
extortion ; for without such a premium, it would be impossible in many
cases to have the laws executed with vigour and success (b). But it has
been always held, that a promise to pay an officer money for the doing
of a thing for which the law will not suffer him to take anything is merely
void, however freely and voluntarily made (c).

The following statutes impose penalties for offences in the nature of
extortion by taking excessive or illegal fees : — Officers of the High
Court (15 & 16 Vict. c. 73, s. 26, common law ; 15 & 16 Vict. c. 87, ss. 3, 4,
chancery) ; bailiffs of inferior Courts (7 & 8 Vict. c. 19, s. 3), or of County
Courts (51 & 52 Vict. c. 43, s. 50) ; clerks of Courts of Assize and Quarter
Sessions for taking certain fees as to discharge of recognizances or for
drawing indictments (10 Will. III. c. 12, ss. 7, 8), or on discharge of

(tt) By the ' king's pleasure ' ia meant fees. Archbold, Q.S. (6th ed.).
by the king's justices before whom the (y) Dalt. o. 41. Burn's Just. tit. ' Ex-
cause depends, and at their discretion, 2 Co. tortion.'
Inst. 210. (z) 1 Hawk. o. 68, s. 2. Bac. Abr. tit.

(v) Com. Dig. 323, tit. ' Extortion ' (C). ' Extortion.'

(w) R. V. Higgins, 4 C. & P. 247, (a) 1 Hawk. c. 68, s. 3. 2 Co. Inst. 210.

Vaughan, B. Co. Lit. 368. Bac. Abr. tit. ' Extortion.'

(a;) See Burn's Justice (17th ed.), vol. 3, (6) Bac. Abr. tit. 'Extortion.' 2 Co.

Justice of Peace, p. 21. The penal oath Inst. 210 ; 3 Co. Inst. 149. Co. Lit. 368.
of office contains no express reference to (c) Bac. Abr. tit. ' Extortion.'

CHAP. I.] Of Extortion. 615

accused persons (53 Geo. III. c. 50, ss. 4, 5, 9 ; 8 & 9 Vict. c. 114, s. 1) ;
and clerks of the peace for receiving excessive fees (57 Geo. III. c. 91,
s. 2 ; 11 & 12 Vict. c. 43, s. 30 ; 45 & 46 Vict. c. 50, s. 164) ; and clerks
of justices for taking excessive fees (26 Geo. II. c. 14, s. 2).

Coroners. — Extortion by a coroner or his deputy is a statutory
misdemeanor {d). It is extortion for a coroner to accept a bribe under
a threat to hold an unnecessary inquest (e), or to refuse to view a body
until the fees of himself and his clerk have been paid (/).

Gaolers. — It is extortion for a gaoler to obtain money from his prisoner
by colour of his office [g), or to detain the corpse of a prisoner in order to
enforce a claim for his charges Qi). And by the Gaol Fees Abolition Act,
1815 (55 Geo. III. c. 50), s. 13, it is a misdemeanor for a gaoler to exact
fees from prisoners for or on account of their entrance, commitment, or
discharge, or to detain a prisoner for non-payment of a fee or gratuity.
Prison officers incur penalties for taking fees (28 & 29 Vict. c. 126,
ss. 20, 66).

Churchwardens. — It has been held extortion in a churchwarden {i)
to obtain a silver cup or any other valuable thing by colour of his office ;
and that he is indictable if he take money corruptly colore officii and
does not account for it (j).

Ecclesiastical Officers. — It has been held to be extortion for the
chancellor and registrar of a bishop to oblige the executor of a will
to prove it in the Bishop's Court and to take fees thereon when they
knew that the will had already been proved in the Prerogative
Court {k).

Franchise Holders. — ^Where custom has ascertained the toll, if the
miller takes more than the custom warrants, it is extortion (?) ; and the
same if a ferryman takes more than his due by custom for the use of his
ferry (m). And where the farmer of a market erected so many stalls,
as not to leave sufficient room for the market people to stand and sell
their wares, so that for want of room they were forced to hire the stalls
of the farmer, taking money for the use of the stalls in such a case was
held extortion [n).

By sect. 50 of the Turnpike Act, 1823 (4 Geo. IV. c. 95), no person who
shall take more toU than he is authorised to take, shall be prosecuted by
indictment for extortion, or otherwise (o).

Sheriffs. — Extortion by sheriffs and their officers is punishable under
50 & 51 Vict. c. 55, s. 29, set out ante, p. 607. It is extortion for an under-
sheriff to obtain his fees by refusing to execute process till they are

(d) 50 & 51 Vict. c. 71, s. 8 (2), ante, (k) R. v. Loggen, 1 Str. 73.

p. 602. 55 & 56 Viot. c. 56, 3. 1 (5). {I) R. -o. Burdett, 1 Ld. Baym. 149.

(e) R. V. Harrison, 3 Co. Inst. 149. (m) R. v. Roberts, 4 Mod. 101.

(/) 1 East, P. C. 382. (») R. v. Burdett, 1 Ld. Baym. 149,

(g) SeeR. I). Broughton, Trem. P.O. 111. (o) This is not repealed, but the unre-

32 Geo. II. c. 28, ss. 11, 12, repealed in 1887 pealed portion of the Act is now treated aa

as to sheriffs and their officers. local and personal (see 53 & 54 Vict. o. 51,

(h) R. V. Soott, 2 Q.B. 248 n. R. v. Fox, o. 3. S. L. R.), and all turnpike trusts are

ibid. 246. And see Jones v. Ashburnham, now expired. In R. v. Hamlyn, 4 Camp.

4 Bast, 455, 460. 379, it had been decided that questions of

(i) As to the present position of these exemption from toll could not be tried by

officers, see ante., p. 604. indicting the turnpike keeper for extortion

(j) R. V. Eyres, 1 Sid. 307. in taking the toll.

616 Of Offences hy Persons in Office. [book vin.

paid (p) and for a sheriS's officer to bargain for money to be paid him by
A. to accept A. and B. as baU for C. wbom he has arrested (q), or to
arrest a man in order to obtain a release from him (r).

Indictment. — Two persons may be indicted jointly for extortion
where no fee was due. Upon an indictment against the chancellor and
the registrar of a bishop, it was objected that the offices of the defendants
were distinct, that what might be extortion in one might not be so in the
other, and that therefore the indictment ought not to be joint. But
Parker, C.J., said : ' This would be an exception if they were indicted for
taking more than they ought ; but it is only against them for contriving
to get money where none is due : and this is an entire charge. For
there are no accessories in extortion (s) : but he that is assisting is as
guilty as the extortioner, as he that is party to a riot is answerable for
the acts of others ' (t). And an indictment against three averring that
they, colore officiorum suorum, took so much, is good, for they might take
so much in gross, and afterwards divide it amongst them, of which the
party grieved could have no notice (m).

An indictment for extortion is triable in the county where the offence
was committed {v) and is within the jurisdiction of Courts of Quarter
Sessions (w). A count for extortion ought to charge a single offence
only ; because every extortion from every particular person is a separate
and distinct offence, and each ofience requires a separate and distinct
punishment, and therefore a count charging the defendant with extorting
divers sums exceeding the ancient rate for ferrying men and cattle over
a river was held bad {x). The indictment must state a sum which the
defendant received : but it is not material to prove the exaet sum as laid
in the indictment ; so that on an indictment for taking extortionately
twenty shillings, proof of but one shilling will be sufficient {y). An
indictment for extortion, where nothing was due, ought to state that
nothing was due (2) ; and if it is for taking more than was due, it ought
to shew how much was due {a). The offence lies in the taking, not in
the extortionate agreement, and a pardon after the agreement and
before the taking does not pardon the extortion (&).

(p) Empson v. Batkurst, Hutt. 52, s. 4, extortion could be tried in any county.

Wliere it is said that an obligation made 1 Hawk. c. 68, s. 6, note (3). Burn's Jus-

by extortion is against common law, for it tioe, tit. ' Extortion.' Starkie, Cr. PI. 385,

is as robbery ; and that the sheriff'a fee is note (k). But this enactment was repealed

not due imtil execution. See Beawfage's in 1879 (42 & 43 Vict. i;. 59).

Case, 10 Co. B,ep. 100. (w) 2 Hawk. c. 26, s. 50. 2 OHt. G\: L.

(q) StotesbUry i\ Smith, 2 Burr. 924. 294n. The old form of commission of the

(r) Williams v. Lyons, 8 Mod. 189. peace contained the word ' extortions.'

(s) Vide ante, p. 138. The present form, coupled with 5 & 6 Vict.

(i) R. V. Loggen, 1 Str. 75. Qucere, c. 38, s. 1, is wide enough to include the

whether this was not an indictment for a offence.

conspiracy to defraud, and not for extor- (a;) R. v. Roberts, Carth. 226.

tion. But aa to the rule, that several per- {y) R. v. Burdett, 1 Ld. Raym. 149.

sons may be jointly indicted for extortion, And see R. v. Gillham, 6 T. R. 267.

see R. V. Atkinson, Ld. Raym. 1248 ; 1 (z) R. v. Lake, 3 Leon. 268. Com. Dig.

Salk. 382. tit. ' Extortion.'

(m) Lake's case, 3 Leon. 268. Com. (o) Ibid.

Dig. tit. ' Extortion.' (6) R. v. Burdett, 1 Ld. Raym. 149,

(v) It was said that Under 31 Eliz. c. 6, Holt, C.J.

CHAP. I.] Of Refusal to serve a Public Office. 617

Sect. V. — Of Eefusal to serve a Public Office.

It is a misdemeanor at common law. punishable by fine and (or)
imprisonment to refuse to serve a public office when duly elected (c).
And the refusal of persons to execute ministerial offices to which they
are duly appointed, and from the execution of which they have no proper
ground of exemption {d), seems in general to be punishable by indictment.
Indictpaents for this offence have not been presented for many years,
and the existing precedents appear to apply only to parochial or corporate
offices filled by election, except one, which relates to the refusal of a
sheriff to take up his office or appointment (e).

The indictment must aver that the defendant had notice of his
appointment to the office in question (/).

Constables. — It is indictable for a constable, after he has been duly
chosen, to refuse to execute the office (g), or to refuse to take the oath
for that purpose (h). But a person is not liable to serve the office of
constable unless he is resident in the parish. Where, therefore, a person
occupied a house, and paid all parish rates in respect of it, and carried
on the trade of a printer, frequenting the house daily on all working days,
and sometimes remaining there during the night at work, but not sleeping
in the house, it was held that he was not liable to serve the office of
constable in the parish where the house was situated (i). But where
a person occupied a warehouse in M., and usually slept at a lodging-house
in M. from Monday till Saturday, when he returned to his mother's in
H., where he also had premises, and he did suit and service to the court-
leet of H., the Court thought that he was liable to be appointed a constable
of M. (j).

Mayors, &c. — In the case of mayors, aldermen and persons elected
to serve in municipal office, refusal to serve is punishable by fine, which
in practice, if not in law, supersedes the remedy by indictment (k).

(c) E. V. Bower, 1 B. & C. 587. R. v. fendant unlawMly, kc, ' did neglect and
Denison, 2 Ld. Kenyon, 259. refuse to take upon himself the execution

(d) For exemption from service in paro- of the said office ; ' and it is not necessary
chiai offices, see Archb. O. PI. (23rd ed.) to state that he refused to be sworn. R. v.
1251n. Brain, 3 B. & Ad. 614. Upon such an in-

(/) R. V. Fearnley, 1 T. R. 316. R. v. is sufficient prima facie evidence of a re-
White, Cald. 183. R. v. Winship, Cald. 72. fusal to take the office ; but if it were
R. V. Kingston, 8 East, 41. proved that, although not sworn, he had

(g) R. V. Lowe, 2 Str. 92. R. v. Chappie, acted as constable, the refusal to take the

3 Camp. 91. R. v. Genge, 1 Cowp. 13. R. oath would not prove that he refused to

V. Qerke, 1 Keb. 393. By the Parish Con- take the office. Ibid. Where there is a

stables Act, 1872 (35 & 36 Vict. c. 92), after special custom of swearing in constables,

the March 24, 1873, no parish constable as in the City of London, it is unnecessary

shall be appointed except as therein pro- to set such custom out in the indictment,

vided. Where, if an indictment for refusing to

(h) R. V. Harpur, 5 Mod. 96. Fletcher serve the office of constable on being there-

V. Ingram, 5 Mod. 127. to chosen by a corporation did not set forth

(i) R. V. Adlard, 4 B. & C. 772 ; 7 D. & the prescription of the corporation so to

R. 340. See Donne v. Martyr, 8 B. & C. choose, it was bad ; for a corporation has

62. no power of common right to choose a

(j) R. V. Mosley, 3 A. & B. 488. See constable. R. v. Barnard, 1 Ld. Raym.

this case as to what ia an excessive fine for 94.

refusing to serve the office. It is sufficient, [k) 45 & 46 Vict. e. 50, s. 34 ; 51 & 52

in an indictment for refusing to execute the Vict. o. 41, s. 75 ; 56 & 57 Vict. o. 73, o. 48 ;

office of constable, to state that the de- 62 & 63 Vict. c. 14, ss. 7, 34.

618 Of Offences by Persons in Office. [book viii.

Overseers of the Poor. — A person is indictable for refusing to take
upon himself the office of overseer of the poor (1). For though the Poor
Law Act, 1601 (43 Eliz. c. 3), says only that certain persons therein
described shall be overseers, and gives no express indictment for a refusal
of the office, yet upon the principles of the common law, which are that
every man shall be indicted for disobeying a statute, the refusal to serve
when duly appointed is indictable (m). But there should be previous
notice of the appointment, and the indictment should shew that the
defendant was bound to undertake the office by setting forth how he
was elected (n).

(1) R. V. Jones, 2 Str. 1145. 1 Bott. 360, be for the overseer's year : and an indict-

pl. 377. R. V. Poynder, 1 B. <fe C. 178. R. ment, stating that the defendant was ap-

V. Hall, 1 B. & C. 123. pointed ' overseer of the poor of the parish

(m) R. V. Jones, ubi supra. of A.' and that he afterwards refused ' to

(n) R. i'. Harpur, 5 Mod. 96. In R. u. take the said office of overseer of the parish

Burder, 4 T. R. 778, it was held that an to which he was so appointed,' was held

appointment of an overseer of the poor for good on demurrer.
the year next ensiling must be understood to

( 618a )

CANADIAN NOTES.

OF OFFENCES WITH RESPECT TO PUBLIC OFFICE, ETC. — OF MISCONDUCT

IN OFFICE.

Sec. 1. — Misconduct of Officers Entrusted with Execution of Writs.
— Code see. 166.

Amount of Fine. — Code see. 1029.

Term of Imprisonment. — Code see. 1052.

Neglect of Duty. — On a trial of an indictment charging a misde-
meanour against the principal Eegistrar of Deeds of a county and his
deputy jointly for misfeasance in not recording deeds in their due
order, it was objected that they could not be indicted together in one
indictment and legally convicted at one and the same time ; but it was
held by the full Court on the points reserved, that though the principal
might perhaps not be indictable for the wrongful act of his deputy
committed in his absence and without his knowledge or consent, it is
a different thing when he is present and knowing and consenting to
the act ; that in such a ease both are wrong-doers and particeps crim-
inis. It was also contended, in the same case, that the deputy registrar
could not be legally convicted so long as his principal legally held the
office ; but it was held that the deputy was liable to be indicted not only
while the principal holds office, but even after the deputy himself has
been dismissed from his office. R. v. Benjamin (1853), 4 U.C.C.P. 179.

Sec. 3. — Frauds.

Frauds upon Government. — Code sec. 158.
Consequences of Conviction. — Code sec. 159.
Breach of Trust hy Puilic Officer. — Code see. 160.

Sec. 4. — Extortion.

In R. V. Tisdale (1860), 20 U.C.Q.B. 272, two justices of the peace
were tried before McLean, J., and a jury and found guilty upon an
indictment for extortion in exacting from a person charged on a pre-
liminary enquiry before them with a felony 25 shillings as fees due to
them as justices and for fees for his arrest. The magistrates had held
that the charge was not sustained by the evidence, but had collected
the costs above mentioned from the accused as a condition of his
discharge.

6186 Misconduct in Public Office. [book viii.

The offence is not constituted by demand only without actual
receipt of the illegal fee. Ibid; Parsons v. Crabb, 31 U.C.C.P. 151.

The statute of 1275, 3 Edw. I. ch. 26, which deals with both civil
and criminal process therefor, is declaratory of the common law in
enacting the offence of extortion by the King 's officers to be indictable ;
the offence is a common law misdemeanour punishable on indictment
or information by fine and imprisonment and removal from office.
Ibid. The repeal of that statute as regards Ontario by Ont. Stat. 1902,
2 Edw. VII. ch. 1, is in terms as well as constitutionally limited to
such portions of same as are within the provincial legislative authority.
Stat. Law Eevision Act (Ont.), 1902, ch. 1, see. 2.

Evidence of corrupt motive must be adduced in order to obtain
leave to exhibit a criminal information against a justice of the peace
for malfeasance of office. The King v. Currie, 11 Can. Cr. Gas. 343.

Misbehaviour in office is an indictable offence at common law and
it is not essential that pecuniary damage should have resulted to the
public by reason of such irregular conduct, nor that the defendant
should have acted from corrupt motives. E. v. John R. Arnold!
(1893), 23 O.R. 201. A man accepting an office of trust concerning
the public, especially if attended with profit, is answerable criminally
to the King for misbehaviour in his office. R. v. Bembridge, 22 St. Tr.
1, 3 Doug. 327. And where there is a breach of trust, fraud or im-
position in a matter concerning the public, though as between indi-
viduals it would only be actionable, yet as between the King and the
subject it is indictable. Ibid.

( 619 )

CHAPTER THE SECOND.

OP BUYING AND SELLING PUBLIC OFFICES.

Common Law. — The buying and selling of offices of a public nature
has been held a misdemeanor and indictable at common law (a). In R.
V. Vaughan (6) Lord Mansfield said that a great officer of the Crown, at the
head of the Treasury and in the King's confidence, would be guilty of a
misdemeanor in selling his interest with the King on procuring an
office (c) and ' wherever it is a crime to take it is a crime to give ; they
are reciprocal.' That case was an attempt, by offering a bribe to the Duke
of Grafton, then first Lord of the Treasury and a Privy Councillor, to
procure the grant to the defendant of a patent of the reversion to the
office of clerk in the Supreme Court of Jamaica. On an indictment for
conspiracy to obtain money, by procuring from the Lords of the Treasury
the appointment of a person to an office in the customs (d), it was proposed
to argue that the indictment was bad on the face of it, as it was not a
misdemeanor at common law to sell or to purchase an office like that of
coast-waiter. But Ellenborough, C.J., said that if that were to be made
a question, it must be debated on a motion in arrest of judgment, or on a
writ of error ; but that, after reading R. v. Vaughan, it would be very
difficult to argue that the ofience charged in the indictment was not a
misdemeanor. And Grose, J., afterwards, in passing sentence, said
that there could be no doubt but that the offence charged was clearly
a misdemeanor at common law.

Where the defendant, who was clerk to the agent for the French
prisoners of war at Porchester Castle, took bribes in order to procure
the exchange of some of them out of their turn, it appears to have been
made the subject of an indictment (e).

Statutes. — The principal statutes against the sale of public office
still in force (/) are hereunder stated.

(a) Stockwell v. North, Noy, 102 ; Moore be called to ordain, name, or make, jua-

(K.B.) 781. 1 Hawk. o. 67, a. 3. Bao. Abr. tioes of the peace, sheriffs, escheaters,

tit. ' Ofl&ces and Officers.' 3 Chit. Cr. L. customers, comptrollers, or any other offi-

681. cer or minister of the King, shall be firmly

(6) 4 Burr. 2494, 2500. sworn that they shall not ordain, name, or

the impeachments against ministers have for any gift or brokage, favour, or affec-

been for taking monej' to procure offices tion ; nor that none which pursueth by

grantable by the Crown.' himself, or by other, privily or openly, to

{d) R. V. PoUman, 2 Camp. 229n. be in any manner of office, shall be put into

(e) R. V. Beale, cited in R. v. Gibbs, the same office, or in any other, but that

1 East, 183. they make all such officers and ministers

(/) 12 Rich. II. e. 2 enacted, ' that the of the best and most lawful men, and suf-

ohancellor, treasurer, keeper of the privy ficient to their estimation and knowledge.'

seal, steward of the King's|house, the King's This Act was repealed in 1871 (34 & 35

chamberlain, clerk of the rolls, the justices Vict. c. 48). As to its meaning, effect, and

of the one bench and of the other, barons extent, see Earl of Macclesfield's case, 16

of the Exchequer, and all other that shall St. Tr. 767.

620 Of Buying and Selling Public Offices, [book Vili.

The Sale of Offices Act, 1551 (5 & 6 Edw. VI. c. 16 ) {g), for the avoiding
of corruption which may hereafter happen to be in the officers and
ministers, in places or rooms wherein there is requisite to be had the true
administration of justice or services of trust, and to the intent that persons
worthy and meet to be advanced to the place where justice is to be
ministered, &c., should hereafter be preferred to the same and none other,
enacts (sect. 1) that if any person or persons at any time hereafter bargain
or sell any office or offices, or deputation of any office or offices, or any
part or parcel of any of them, or receive, have, or take any money, fee,
reward, or any other profit directly or indirectly, or take any promise,
agreement, covenant, bond, or any assurance to receive or have any money,
fee, reward, or other profit, directly or indirectly, for any office or offices
or for the deputation of any office or offices, or any part of any of them,
or to the intent that any person should have, exercise, or enjoy any office
or offices . . . which office or offices, or any part or parcel thereof, shall
in anywise concern the administration or execution of justice, or the
receipt, controlment, or payment of the King's . . . treasure, rent,
revenue, account alneage, auditorship or surveying of any of the
King's . . . honours, castles, manors, lands, tenements, woods or here-
ditaments, or any of the King's . . . customs (h) or any other adminis-
tration, or necessary attendance to be had, done or executed in any of the
King'sMajesty's custom house or houses, or thekeepingof any of theKing's
towns, castles, or fortresses being used, occupied, or appointed for a place of
strength and defence, or which shall concern or touch any clerkship in any
court of record wherein justice is to be ministered; the offender shall not
only lose and forfeit all his right, interest and estate in or to such office or
deputation of office, but also shall be adjudged a person disabled to have,
occupy, or enjoy such office or deputation. The statute further enacts
(sect. 2) that such bargains, sales, bonds, agreements, &c., shall be void ;
and provides (sect. 3) that the Act shall not extend to any office whereof
any person shall be seised of any estate of inheritance, nor to any office
of the keeping of any park, house, manor, garden, chase, or forest. It
also provides (sect. 4) that all judgments given or things done by
offenders, after the offence and before the offender shall be removed from
the exercise of the office or deputation, shall be good and sufficient in law (t).

There are many decisions on this Act collected in Chit. Stat. vol. 8,
tit, ' Offices (against sale of).'

The following offices have been held to fall within the purview of
the Act : Chancellor, registrar, and commissary in ecclesiastical courts
and surrogates (j) ; cofferer (k), surveyor of the customs (l) ; customer of

(g) See Co. Lit. 234 a. The Act does not {h) The Act was repealed in 1825 (6 Geo.

extend to Ireland. Maoarty v. Wickford, IV.c. 105,s. lOl.sofarasregardstheoustoms

Trin. 9 Geo. IV. K. B. Bao. Abr. ' Ofiaoea or ofBoers in the service of the customs,

and Officers' (but vide 49 Geo. III. c. 126): (») Ss.5, 6 were repealed in 1863{S.L.R.).

nor to the colonies : Blankard v. Galdy, 2 (j) 12 Co. Rep. 78. 3 Co. Inst. 148.

, Salk. 411 ; 2 Ld. Raym. 1245. Daws v. Dr. Tudor's case, Cro. Jao. 269. Robo-

Pindar, 3 Keb. 26 ; and see Bac. Abr. tham v. Taylor, 2 Brownl. 11. Tuxton v.

' Offices and Officers ' (F). But if the Morris, 2 Ch. Gas. 42. 1 Hawk. c. 67, s. 4.

office, though in the plantations, had been {k) Sir Arthur Ingram's case, 3 Bulst.

granted under the great seal of England, 91 ; Co. Lit. 234, where it is said that the

the sale of it would have been held criminal king could not dispense with this statute

at common law. R. v. Vaughan, 4 Burr. hy any non obstante. See also Oro. Jac 385

2494, 2500, Lord Mansfield. (I) 2 And. 55, 107.

CHAP. II.J Sale of Offices Act, 1809. 621

a port (m) ; of collector and supervisor of the excise (w) ; clerk of the
crown, and clerk of the peace (o) ; gaolers (p) ; and stewards of Courts
leet (o). But offices in fee have been held to be out of the statute (r) ;
nor was the sale of a bailiwick of a hundred within it, for such an office
did not concern the administration of justice, nor is it an office of trust (s).
And for the like reason the office of clerk to tke deputy registrar in the
prerogative Court of Canterbury was held to be not within the Act {t).
A seat in the six clerks' office was not within the statute, being a minis-
terial office only {u) ; the statute did not extend to military officers («).
In Purdy v. Stacy (w). Lord Mansfield said that if the Lords of the
Admiralty were to take money for their warrant to appoint a person to
be a purser, it would be criminal in the corrupter and corrupted.

One who makes a contract for an office in violation of the Act is
absolutely disabled for life from holding the office and his capacity
cannot be restored by any grant or dispensation whatever {x).

Deputation. — Where an office is within the statute, and the salary
is certain, if the principal makes a deptitation reserving a less sum out of
the salary, it is good. And if the profits are uncertain, and arise from
fees, if the principal makes a deputation reserving a certain sum out of
the fees and profits of the office, it is good : for in these cases the deputy
is not to pay unless the profits arise to so much ; and though a deputy
by his constitution is in place of his principal, yet he has no right to his
fees, they stiU continuing to be the principal's ; so that, as to him, it is
only reserving a part of his own, and giving away the rest to another.
But where the reservation or agreement is not to pay out of the profits,
but to pay generally a certain sum, it must be paid at all events ; and a
bond for performance of such agreement is void by the statute (y).

This Act is recited and much extended by the Sale of Offices Act, 1809
(49 Geo. III. c. 126), which enacts (sect. 1), that ' all the provisions therein
contained shaU extend to Scotland and Ireland, and to all offices in the
gift of the Crown, or of any office appointed by the Crown, and all com-
missions, civil, naval, or military (z), and to all places and employments,
and to all deputations to any such offices, commissions, places, or em-
ployments, in the respective departments or offices, or under the
appointment or superintendence and control of the lord high treasurer,
or commissioners of the Treasury, the secretary of state, the lords com-
missioners for executing the office of lord high admiral (a). . . . The

(m) 1 H. Bl. 327. (w) 5 Burr. 2698. There is a ruling in

(re) Law V. Law, 3 P. Wms. 391. 2 Vern. 308; and oas. temp. Talbot, 40, that

(o) Macarty v. Wickford, Trin. 9 Geo. II. the Act did not apply to pursers, which was

K.B. Bao. Abr. ' Offices and Officers ' described by Lord Loughborough as con-

(F). See post, p. 626. trary to an evident principle of law. 1 H.

(p) Stockwith V. North, Moore, K.B. Bl. 326.

781. (x) Hob. 75. Co. Lit. 234. Cro. Car.

iq) Williamson v. Barnsley, 1 Brownl. 361. Cro. Jac. 386. Cas. temp. Talb. 107.

70. (y) Bac. Abr. ' Offices and Officers ' (F).

(r) Ellis V. Ruddle, 2 Lev. 151. 1 Hawk. o. 67, s. 5. Salk. 468. 6 Mod.

(s) R. V. Godbolt, 4 Leon. 33. 234. Godolphin v. Tudor, Comb. 356.

{t) Aston V. Gwinnell, 3 Y. & J. 136. (2) 5 & 6 Edw. VI. c. 16, did not apply

(«) Sparrow v. Reynold, Pasch. 26 Car. to mihtary officers : see note {v), supra.

2(0. B.). Bac. Abr. ' Offices and Officers ' (a) The parts here omitted were repealed

(F). in 1872 (35 & 36 Vict. c. 97).

(v) 1 Vern. 98.

622 Of Buying and Selling Public Offices, [book viii.

commander-in-chief . . . and also the principal officers of any other public
department {b), or office of his Majesty's government in any part of the
United Kingdom, or in any of his Majesty's dominions, colonies, or
plantations, which now belong or may hereafter belong to his Majesty (c) ;
and also to all offices, commissions, places, and emplojonents belonging
to or under the appointment or control of the East India Company {d),
in as full and ample a manner as if the provisions of the said Act were
repeated, as to all such offices, commissions and employments, and made
part of this Act ; and the said Act and this Act shall be construed as
one Act, as if the same had been herein repeated and re-enacted.' By
sect. 2 in case of forfeiture the right of appointment vests in the Crown.

Sect. 3. '. . . If any person or persons shall sell, or bargain for the sale
of, or receive, have, or take any money, fee, gratuity, loan of money,
reward, or profit, directly or indirectly, or any promise, agreement,
covenant, contract, bond or assurance, or shall by any way, device, or
means, contract or agree to receive or have any money, fee, gratuity,
loan of money, reward or profit, directly or indirectly, and also if any
person or persons shall purchase, or bargain for the purchase of, or
give or pay any money, fee, gratuity, loan of money, reward or profit, or
make or enter into any promise, agreement, covenant, contract, bond,
or assurance to give or pay any money, fee, gratuity, loan of money,
reward or profit, or shall by any ways, means, or device, contract or
agree to give or pay any money, fee, gratuity, loan of money, reward, or
profit, directly or indirectly, for any office, commission, place or employ-
ment, specified or described in the said recited Act [of 1551, ante, p. 620]
or this Act, or within the true intent or meaning of the said Act, or this
Act, or for any deputation thereto, or for any part, parcel, or participation
of the profits thereof, or for any appointment or nomination thereto, or
resignation thereof, or for the consent or consents, or voice or voices of
any person or persons, to any such appointment, nomination, or resign-
ation ; then and in every such case, every such person, and also every
person who shall wilfully and knowingly aid, abet or assist such person
therein, shall be deemed and adjudged guilty of a misdemeanor.'

By sect. 4, '. . . If any person or persons shall receive, have or take,
any money, fee, reward, or profit, directly or indirectly, or take any
promise, agreement, covenant, contract, bond, or assurance, or by any
way, means, or device, contract or agree to receive or have any money, fee,
gratuity, loan of money, reward or profit, directly or indirectly, for any
interest, solicitation, petition, request, recommendation, or negotiation
whatever, made or to be made, or pretended to be made, or under any
pretence of making, or causing or procuring to be made, any interest,
solicitaiion, petition, request, recommendation, or negotiation, in or about

(i) e.g., postmasters. Bourke v. Blake, touching or concerning the trust and duty

7 Ir. C. L. R. 348. . of any office or employment under the

(c) See GrenvUle v. Atkins, 9 B. & C. Crown, or the East India Company, by any
462. British subject there resident, is to be

(d) By the East India Company Act, deemed a misdemeanor. This Act appears
1793 (33 Geo. III. c. 52), a. 66, the making to be superseded by 49 Geo. III. o. 126,
or entering into or being a party to any supra. See the Government of India Act,
corrupt bargain or contract, for the giving 1858 (21 & 22 Vict. c. 106).

up or obtaining, or in any other manner

CHAP. II.] Sale of Offices Act, 1809. 623

or in anywise toucliing, concerning, or relating to, any nomination,
appointment, or deputation to, or resignation of, any such office, commis-
sion, place, or employment, as aforesaid, or under any pretence for using
or having used any interest, solicitation, petition, request, recommenda-
tion, or negotiation, in or about any such nomination, appointment,
deputation, or resignation, or for the obtaining or having obtained the
consent or consents, or voice or voices, of any person or persons, as
aforesaid to such nomination, appointment, deputation, or resignation ;
and also if any person or persons shall give or pay, or cause or procure to
be given or paid, any money, fee, gratuity, loan of money, reward, or
profit, or make, or cause, or procure to be made, any promise, agree-
ment, covenant, contract, bond, or assurance, or by any way, means,
or device, contract or agree, or give or pay, or cause or procure
to be given or paid, any money, fee, gratuity, loan of money, reward or
profit, for any solicitation, petition, request, recommendation, or negotia-
tion whatever, made or to be made, that shall in anywise touch, concern,
or relate to any nomination, appointment, or deputation to, or resignation
of, any such office, commission, place, or employment as aforesaid, or
for the obtaining or having obtained, directly or indirectly, the consent
or consents, or voice or voices, of any persons or person as aforesaid,
to any such nomination, appointment, deputation, or resignation ;
and also if any person or persons shall, for or in expectation of gain, fee,
gratuity, loan of money, reward, or profit, solicit, recommend, or negotiate
in any manner, for any person or persons, in any matter that shall in
anywise touch, concern, or relate to, any such nomination, appointment,
deputation, or resignation aforesaid, or for the obtaining, directly or
indirectly, the consent or consents, or voice or voices, of any person or
persons to any such nomination, appointment, or deputation, or resigna-
tion aforesaid, then and in every such case every such person, and also
every person who shall wilfully and knowingly aid, abet, or assist, such
person therein, shall be deemed and adjudged guilty of a misdemeanor.'

By sect. 5, '. . . If any person or persons shall open or keep any house,
room, office or place for the sohciting, transacting or negotiating in any
manner whatever any business relating to vacancies in, to the sale or
purchase of, or appointment, nomination, or deputation to, or resignation,
transfer, or exchange of any offices, commissions, places, or employment
whatever, in or under any further department, then, and in every such
case, every such person, and also every other person who shall wilfully
and knowingly aid, abet, or assist therein shall be deemed and adjudged
guilty of a misdemeanor.'

By sect. 6, any person advertising any office, place, &c., or the name
of any person as broker, &c., or printing any advertisement or proposal
for such purposes, is liable to a penalty of £50.

Sect. 9 provides that the Act shall not extend to any office excepted
from the Act of 1551, nor to any office which was legally saleable before
the passing of this Act, and in the gift of any person by virtue of any
office of which such person is or shall be possessed under any patent or
appointment for his life (e).

e) Ss. 7, 8, and the rest of s. 9 were repealed in 1872 (S. L. R. No. 2).

624 Of Buying and Selling Public Offices, [book viii.

Sect. 10 provides that the Act shall not extend to prevent or make
void any deputation to any office, in any case in which it is lawful to
appoint a deputy, or any agreement, &c., lawfully made in respect of
any allowance or payment to such principal or deputy respectively, out of
the fees or profits of such office (/).

By sect. 11, annual reservations, charges, or payments, out of fees
or profits of any office, to any person who shall have held such office, in
any commission, or appointment of any person succeeding to such office,
and agreements, &c., for securing such reservations, charges, or payments,
are also excepted ; provided that the amount of the reservations, &c.,
and the circumstances and reasons under which they shall have been
permitted, shall be stated in the commission or instrument of appoint-
ment of the successor (g).

By sect. 14, offences against the Acts of 1551 and 1809, by any
governor, lieutenant-governor, or person having the chief command,
civil or military, in his Majesty's dominions, colonies, or plantations,
or his secretary, may be prosecuted and determined in the High Court of
Justice in London or Middlesex (h), in the same manner as any crime,
&c., committed by any. person holding a public employment abroad
may be prosecuted under the provisions of the Criminal Jurisdiction
Act, 1802 (42 Geo. III. c. 85) (i).

Where by an agreement, reciting that the plaintiff carried on the
business of a law stationer, and was sub-distributor of stamps, collector
of assessed taxes, and that being desirous of giving up his said business,
he had agreed with the defendant for the sale of the same for the sum of
£300, it was witnessed that, in consideration of the sum of £300, the
plaintiff agreed to sell and the defendant agreed to buy the said business
of a law stationer so carried on by the plaintiff, and all his goodwill and
interest therein, and that the plaintiff should not at any time afterwards
carry on the business of a law stationer, or collect any of the assessed
taxes, but would use his utmost endeavours to introduce the defendant
to the said business and offices ; it was held that the agreement was a
contract for the sale of the offices of sub-distributor of stamps and
collector of assessed taxes, and illegal within the Acts of 1551 and 1809.
It was one entire contract, and the defendant could not be called upon to
pay, except upon the performance by the plaintiff of the whole consider-
ation. According to the plain words of the agreement, a part of the
consideration was the agreement by the plaintiff to recommend the
defendant to the offices, which was prohibited by the statutes (/).

Where a British subject, being a lieutenant in a regiment in the Bast
India service, and divers other officers in the said regiment agreed with
A. G., that the said lieutenant and other officers should subscribe and
pay to the said A. G., being a major and their senior in the said regiment,
and that he should accept from them a certain sum of money in consider-
ation of his resigning his said position as major in the said regiment,
and creating a vacancy of major therein, and the money was paid to A. G.,

(/) Ante, p. 621. Bench at Westminster, vide ante, p. 31.

(g) S. 12 was repealed in 1872 (S. L. R. (i) Ante, p. 609. S. 15 was repealed in

No. 2). 1872- (S. L. R. No. 2).

{h) In the place of the Court of King's (j) Hopkins v. Presoott, 4 0. B. 578.

CHAP 11.] Of Buying and Selling Public Offices. 625

and he resigned his said position in pursuance of the said agreement ;
it was held that the agreement was illegal, under sect. 4 of the Act of
1809, and that a bond given in pursuance of it was void (k).

The sale of an East India Director's nomination to a cadetship was
within sect. 3 of that Act, although by the practice of the Company
such nomination is given only in the form of a presentation of the party
by the director to the Court of Directors, ' provided he shall appear to '
them ' eligible for that station,' and he must afterwards be examined
by the committee appointed for that purpose, and passed : and although
the nomination only gives the party, when examined and passed, a right
to go out to India, which he must do at his own expense, and obtain a
commission on his landing ; but before that time he receives no pay from
the Company, and is not under their control. For the object of the
enactment was to prevent all corrupt bargains for the sale of patronage
in matters of public concernment ; and with that view it is immaterial
whether that to which the nomination is sold can be described with most
critical correctness by any of the terms, ' ofEce, commission, place,
or employment.' And a cadetship may be described in an indictment
under the Act as an ' office, commission, place, and employment ' (I).

A., an attorney, who held the offices of clerk of the peace for a liberty,
clerk to the commissioners of land and assessed taxes, clerk to the
commissioners of sewers, clerk to the magistrates, clerk to the deputy-
lieutenants, steward of divers manors, and coroner to the said liberty,
entered into articles of partnership with B., by which, after reciting that
he held many offices, &c., and that it had been agreed that they should
enter into partnership ' in the said business and in the emoluments of
the said offices, &c., upon the terms thereinafter expressed,' it was agreed
that they should enter into partnership for twenty years, and that ' all
the profits and emoluments arising from the said offices,' &c., during the
said partnership should be considered as partnership property, and
distributed accordingly ; it was also agreed that if A. died within the term
then, during such period as no son of A. should be a partner in the said
business, B. should be interested in one moiety of the said business, and
the executors of A. should be entitled to the profits of the other moiety
of the said business, to be applied as part of his personal estate ; and it
was held that the agreement was not a contract for the sale of an office
within the Acts of 1551 and 1809 (m).

Where a count of an indictment for a misdemeanor in the sale of
the office of a chaplain in the East Indies, alleged that the defendants
unlawfully and corruptly did contract with D. N. to procure the
appointment of a certain office and employment under the appointment
and control of the East India Company, to wit, the office and employment
of a chaplain in India, of a person duly qualified for the said office to be
named by the said D. N. in that behalf ; it was held that the count was
bad ; for the contract or agreement must be to receive money or

(i) Graeme v. Wroughton, U Ex. 146. Government of India {2nd ed.), 154.

(I) R. V. Charretie, 13 Q.B. 447. As to (m) Sterry v. Clifton, 9 C. B. 110. It

appointments in India, see the Government was also held that the latter clause was not

of India Acts, 1858 (21 & 22 Vict. c. 106), a, violation of 22 Geo. II. c. 46, s. 11, re-

and 1861 (24 & 25 Vict. c. 104). Ilbert, pealed by 7 & 8 Vict. c. 73.

VOL. I.

2 s

626 Of Buying and Selling Public Offices, [book viil.

profit, and the word ' corruptly ' is not su£&cient to bring it within the
Act (w).

The Act of 1809 did not extend to purchases and exchanges of com-
missions in his Majesty's forces, at the regulated prices ; or to anything
done in relation thereto by authorised regimental agents not advertising
and not receiving money, &c., in that behalf. But ofiicers receiving,
or paying, or agreeing to pay, more than the regulated prices, or pajdng
agents for negotiating, on conviction by a court-martial, forfeited their
commissions, and were cashiered.

By ' The Eegimental Exchange Act, 1875 ' (38 & 39 Vict. c. 16), sect. 2,
' his Majesty may, from time to time, by regulation, authorise exchanges
to be made by officers in his Majesty's regular forces from one regiment or
corps to another regiment or corps, on such conditions as to his Majesty
may for the time being seem expedient, and nothing contained in the
Army Brokerage Acts (o) shall extend to any exchanges made in manner
authorised by any regulation of his Majesty for the time being in force.'

By an Act of 1688 (1 Will. & M. c. 21), it is made unlawful for any
custos rotulorum or other person who has the right to nominate, elect, or
appoint a clerk of the peace (p) to sell the place or take any bond or
assurance or to have any reward, fee, money, or profit, directly or
indirectly, to him or to any other person for nominating, &c. If the
appointing authority sells or the clerk buys the place each forfeits his
office and double the sum or value of what is given or received, recover-
able by action by a common informer, sect. 7 (p). The clerk must, on
taking office, swear that he has not given nor will give anything for his
appointment (sect. 8).

By the Clerk of Assize (Ireland) Act, 1821 (1 & 2 Geo. IV. c. 54), the Act
of 1809 (q) is extended 'to prevent the sale or brokerage of the office of
clerk of assize or nisi prius or judges' registrar in Ireland in as full and
ample manner as if these offices had been mentioned in the Act of 1809
to all intents and purposes whatsoever ' (sect. 7).

By the Sheriffs Act, 1887 (50 & 51 Vict. c. 55, s. 19), ' a sheriff shall
not let to farm his county or any part thereof.'

By sect. 27, ' A person shall not directly or indirectly by himself or by
any person in trust for him or for his use buy, sell, let, or take to farm
the office of under-sheriff, deputy sheriff, bailiff, or any other office or place
appertaining to the office of sheriff, nor contract for promise or grant for
any valuable consideration whatever any such office or place, nor give
promise or receive any valuable consideration whatever for any such
office or place. Any person acting in contravention of the section not
being an under-sheriff, deputy sheriff, baiUff, or sheriff's officer is to be
punished as if he were such ' (r).

(b) Samo V. R., 2 Cox, 178. England by the joint committee of justices

(o) Defined by s. 3 as meaning 5 & 6 and the county council (51 & 52 Vict. c. 41,

Edw. VI. c. 16, and 49 Geo. III. o. 126, s. 83), and in boroughs by the town council

onie, pp. 620, 621. (45 & 46 Vict. c. 50, o. 154).

(p) The office would seem to be within {q) Ante, p. 621.

5 & 6 Edw. VI. c. 16. The appointment (r) As to punishment, see 50 & 51 Vict.

to the office is now made in counties in c. 55, s. 29, ante, p. 607.

( 626a )

CANADIAN NOTES.

OF BUYING AND SELLING PUBLIC OFFICE.

By Statute — Selling or Purchasing Office. — Code sec. 162.
Receiving or Giving Reward for Interest, etc., About Public Office.
-Code see. 163.
Punishment. — Code see. 1052.

( 627 )

CHAPTER THE THIED.

BRIBERY AND CORRUPTION.

Sect. I. — Bribery oi' Public Officers.

Bribery is the receiving or offering any undue reward by or to any
person whatsoever, in a public office, in order to influence his behaviour
in office, and incline him to act contrary to the known rules of honesty
and integrity (a). ' Whenever a person is bound by law to act without
any view to his private emolument, and another by a corrupt contract
engages such person on condition of the payment of money or other
lucrative consideration to act in a manner which he shall prescribe,
both parties are by such contract guilty of bribery ' (b).

It is an indictable misdemeanor at common law to bribe or to attempt
to bribe (c) any person holding a public office, and for any person in an
official position corruptly to use the power or interest of his position for
rewards or promises, by asking for or accepting a bribe. Thus a clerk to
the agent for French prisoners of war was indicted for taking bribes from
the prisoners in order to obtain the exchange of some of them out of their
turn (d).

It is immaterial whether the office is an office of the State (e), or in a
public department (/), oris judicial (g), or ministerial (h), or municipal (i),
or parochial (/).

As to bribery of jurymen, see 'Embracery,' ante, p. 598. As
to bribery to obtain a public office, see 1 Hawk. c. 67, s. 3, and
ante, p. 619. As to bribery in connection with elections, see post,
p. 636. By 31 Ehz. c. 6, penalties are imposed with reference to
bribery and corruption in the election, presentation, or nomination of

(a) 3 Co. Inst. 149. 1 Hawk. o. 67, a. 2. bribe a cabinet minister to give the de-

4 Bl. Com. 139. 3 Steph. Hist. Cr. L. fendant an office in Jamaica).

250. The older definitions limit the offence (/) R.v. Cassano, 5 Esp. 231 (Customs),

to judicial officers : and the old form of R. v. Beale, ubi supra.

the judicial oath expressly bound the (gr) 3 Co. Inst. 147. Earl of Maocles-

judges not to take any gift from any person field's case, 16 St. Tr. 767. R. v. Steward,

who had a plea pending before them. See 2 B. & Ad. 12. R. v. Vaughan, 4 Burr.

Bodmin case, 10 M. & H. 1 24,\Willes, J. 2494, 2500, Lord Mansfield. R. v. Harrison,

(6) 2 Douglas, Election Cases, 400. 1 East, P.C. (Coroner).

(c) ' In mauy cases, especially in bribery (h) R. v. Richardson [1890], 111 Cent,
at elections to Parliament, the attempt is Cr. Ct. Sess. Pap. 612. R. v. Lehwess
a crime if it is completed on his aide who [1904], 140 Cent. Cr. Ct. Sess. Pap. 731
offers it.' R. v. Vaughan, 4 Burr. (constables).

2494, 2500, Ld. Mansfield. Vide ante, (i) R. v. Plympton, 2 Ld. Raym. 1377.

p. 145. R. V. Mayor of Tiverton, 8 Mod. 186. R. v.

(d) R. V. Beale [1798], 1 East, 183, eit. Steward, 2 B. & Ad. 12 (corporate ofiioes).
And see R. v. Vaughan, 4 Burr. 2494. R. (j) R. v. Lancaster, 16 Cox, 737 (asaist-
V. PoUman, 2 Camp. 229. ant overseer). R. v. JoUffe, 1 East, 154 n. ;

(e) R. V. Vaughan, ubi supra (attempt to 4 T. R. 285 (overseers).

2 s 2

628 Of Bribery and Corruption. [bookviii.

fellows, scholars, &c., in churches, colleges, schools, hospitals, halls, or
societies, and to simony and corrupt institution to or resignation of
benefices. Bribery is now an extradition crime {jj).

Sect. II. — Corruption in Municipal Affairs.

Corruption. — By the Public Bodies (Corrupt Practices) Act, 1889
(52 & 53 Vict. c. 69), sect. 1—

(1) ' Every person who shall, by himself, or by or in conjunction with
any other person, corruptly solicit or receive, or agree to receive for himself
or for any other person, any gift, loan, fee, reward, or advantage {k)
whatever, as an inducement to, or reward for, or otherwise on account of
any member, officer, or servant of a public body, as in this Act defined (J),
doing, or forbearing to do anything in respect of any matter or trans-
action whatsoever, actual or proposed, in which the said public body is
concerned shall be guilty of a misdemeanor.'

(2) ' Every person who shall by himself or by or in conjunction with
any other person, corruptly give, promise, or offer any gift, loan, fee,
award, or advantage whatsoever, to any person whether for the benefit
of that person, or of another person, as an inducement to, or reward for,
or otherwise, on account of any member, officer, or servant of any public
body, as in this Act defined, doing, or forbearing to do, anything in
respect of any matter or transaction whatsoever, actual or proposed, in
which such public body as aforesaid is concerned, shall be guilty of a
misdemeanor.'

Punishment. — By sect. 2, ' Any person, on conviction, for offending
as aforesaid, shall, at the discretion of the Court before which he is
convicted —

a. be liable to be imprisoned for any period not exceeding two years,
with or without hard labour, or to pay a fine not exceeding £500,
or to both such imprisonment and such fine ; and
h. in addition, be liable to be ordered to pay to such body, and in such
manner as the Court directs, the amount or value of any gift, loan,
fee, or reward received by him, or any part thereof ; and

c. be liable to be judged incapable of being elected or appointed to any
public office (m) for seven years from the date of his conviction, and
to forfeit any such office held by him at the time of his conviction, and

d. in the event of a second conviction for a like offence, he shall, in
addition to the foregoing penalties, be liable to be adjudged forever
incapable of holding any public office (m) and to be incapable for
seven years of being registered as being an elector, or voting at an
election, either of members to serve in Parliament or of members
of any public body, and the enactments for preventing the voting
and registration of persons declared, by reason of corrupt practices,
to be incapable of voting, shall apply to a person adjudged in
pursuance of this section to be incapable of voting ; and

e. if such person is an officer or servant in the employ of any public
body, upon such conviction, he shall, at the discretion of the Court,

(jj) 6 Edw. VII. 0. 15. (I) Ibid.

(k) Defined 3. 7, post, p. 629. (m) ibid.

CHAP. III.] Corruption of Agents in Business. 629

be liable to forfeit bis rigbt and claim to any compensation or
pension to wbicb be would otberwise bave been entitled.'

Savings as to Offences under Other Laws. — By sect. 3 (1) ' Wbere an
offence under tbis Act is also punisbable under any otber enactment or
at common law, sucb offence may be prosecuted and punisbed eitber
under tbis Act, or under tbe otber enactment, or at common law, but so
tbat no person sball be punisbed twice for tbe same offence ' (n).

(2) ' A person sball not be exempt from punisbment under tbis
Act by reason of tbe invalidity of tbe appointment or election of a person
to a public office.'

By sect. 4, ' A prosecution for an offence under tbis Act sball not be
instituted except by or witb tbe consent of tbe Attorney-General,' i.e.
tbe Attorney or Solicitor-General for England or Ireland and tbe Lord
Advocate as respects Scotland (subsect. 2) (o).

By sect. 6, ' A Court of general or quarter sessions sball in England
have jurisdiction to inquire and bear and determine an offence under tbis
Act.'

By sect. 7, ' Tbe expression " pubbc body " means any council of a
county or council of a city or town, any council of a municipal borougb,
also any board, commissioners, select vestry, or otber body wbicb bas
power to act under and for tbe purposes of any Act relating to local
government or tbe public bealtb or to poor law, or otberwise to administer
money raised by rates in pursuance of any public general Act, but does not
include any public body as above defined existing elsewbere tban in the
United Kingdom. The expression " public office " means any office or
employment of a person as member, officer, or servant of such pubbc body.
The expression " person " includes a body of persons, corporate or in-
corporate (p). Tbe expression "advantage" includes any office or dignity
and any forbearance to demand any money or money's worth or valuable
thing, and includes any aid, vote, consent, or influence, or pretended aid,
vote, consent, or influence, and also includes any promise or procurement
of or agreement or endeavour to procure, or the holding out of any
expectation of any gift, loan, fee, reward, or advantage as before
defined ' (q).

Sect. III.— Corruption of Agents in Business, &c.

Punishment of Corrupt Transactions with Agents.— By the Prevention
of Corruption Act, 1906 (6 Edw. VII. c. 34) (r), by sect. ],

' (1) If any agent corruptly accepts or obtains, or agrees to accept
or attempts to obtain, from any person, for himself or for any'other
person, any gift or consideration as an inducement or reward for
doing or forbearing to do, or for having after tbe passing of this Act
done or forborne to do, any act in relation to bis principal's affairs or
business, or for shewing or forbearing to shew favour or disfavour
to any person in relation to bis principal's affairs or business ; or

(») Vide ante, p. 6. (g) S. 8 adapts the Act to Scotland,

(o) S. 5 as to costs is repealed by 8 Edw. S. 9 relates to proceedings in Ireland.

VII. 0. 15, post, Bk. xii. c. v. (»•) The Act was passed August 4, 1906,

(p) Vide ante, p. 3. and came into force on January 1, 1907.

630 Of Bribery and Corruption. [book viii.

If any person corruptly gives or agrees to give or offers any gift or

consideration to any agent as an inducement or reward for doing

or forbearing to do, or for having after the passing of this Act

done or forborne to do, any act in relation to his principal's affairs

or business, or for shewing or forbearing to shew favour or disfavour

to any person in relation to his principal's affairs or business ; or

If any person knowingly gives to any agent, or if any agent knowingly

uses with intent to deceive his principal, any receipt, account, or

other document in respect of which the principal is interested,

and which contains any statement which is false or erroneous or

defective in any material particular, and which to his knowledge

is intended to mislead the principal ;

he shall be guilty of a misdemeanor, and shall be liable on conviction

on indictment to imprisonment, with or without hard labour, for a

term not exceeding two years, or to a fine not exceeding five hundred

pounds, or to both such imprisonment and such fine, or on summary

conviction to imprisonment, with or without hard labour, for a term not

exceeding four months, or to a fine not exceeding fifty pounds, or to both

such imprisonment and such fine.

(2) For the purposes of this Act the expression " consideration "
includes valuable consideration of any kind ; the expression " agent "
includes any person employed by or acting for another ; and the
expression " principal " includes an employer.

(3) A person serving under the Crown or under any corporation or
any municipal, borough, county, or district council, or any board of
guardians, is an agent within the meaning of this Act ' (s).

Prosecution of Offences. — By sect. 2, '(1) A prosecution for an
offence under this Act shall not be instituted without the consent, in
England of the Attorney-General or Solicitor-General, and in Ireland of
the Attorney- General or Solicitor-General for Ireland.

(2) The Vexatious Indictments Act, 1859 (22 & 23 Vict. c. 17), as
amended by any subsequent enactment (t), shall apply to offences under
this Act as if they were included among the offences mentioned in section
one of that Act.

(3) Every information for any offence under this Act shall be upon
oath (u).

(5) A Court of quarter sessions shall not have jurisdiction to inquire of,
hear, and determine prosecutions on indictments for offences under this Act.

(6) Any person aggrieved by a summary conviction under this Act
may appeal to a Court of quarter sessions.'

Sea Fishery Apprentices.— By the Merchant Shipping Act, 1894
(57 & 58 Vict. c. 60), s. 398, ' If any person (a) receives any money or
valuable consideration from the person to whom an apprentice in the
sea-fishing service is bound, or to whom a sea-fishing boy(v) is bound

(s) S. 1 extends to Scotland, subject to («) Sub-s. 4 as to costs is superseded by

a provision that proceedings with a view to 8 Edw. VII. o. 15, post, Bk. xii. o. v.

summary conviction are to lie before the (u) i.e., a boy of 13 or under 16 bound

sheriff (s. 3). by indenture or agreement (s. 393).

{«) See -post, Bk. ii. p. 1927.

CHAP. III.] Corruption of Agents in Business. 631

by any agreement, or from any one on that person's behalf, or from the
apprentice or boy or any one on the apprentice's or boy's behalf in
consideration of the apprentice or boy being so bound ; or (b) makes or
causes any such payment to be made, that person shall in respect of each
offence be guilty of a misdemeanor whether the apprentice or boy was
or wa8 not validly bound,'

( 632a )

CANADIAN NOTES.

BRIBERY AND CORRUPTION.

Sec. 1. — Bribery of Public Officer.

Accepting or Obtaining Office Corruptly. — Code sec. 156.
Taking or Giving Brib e.-r-Code sec. 157.

Sec. 2. — Corruption in Municipal Affairs.

Punishment. — Code sec. 161.

Limitation of Prosecution. — Code sec. 1140(6).

The receiving of a sum of money from contractors with the muni-
cipal corporation by the officer of the corporation having the supervi-
sion of the contractors' work as a payment made to corruptly influence
him in the performance of his official duties, constitutes the offence
of bribery by sec. 161 of the Criminal Code of Canada. Re Cannon,
14 Can. Cr. Cas. 186.

( 633 )

CHAPTER THE FOURTH.

OF OFFENCES WITH REFERENCE TO THE REGISTRATION OF ELECTORS AND
VOTING, ETC., AT ELECTIONS.

Sect. I. — Offences in Connection with the Preparation of
Electoral Registers.

Wilful neglect or breach of duty by officials under the Acts relating
to the registration of electors appears not to be indictable (a) ; being
in most if not all cases specifically and summarily punishable under the
Acts (b).

By the Parliamentary Registration Act, 1843 (6 & 7 Vict. c. 18), s. 41,
a revising barrister has power to administer an oath to all persons exam-
ined before him, ' and all parties whether claiming or objecting or objected
toj and all persons whatsoever may be examined on oath touching the
matters in question ; and every person taking an oath or afiirmation under
this Act who shall wilfully swear or afiirm falsely shall be deemed guilty
of perjury.'

By the County Voters Registration Act, 1865 (28 & 29 Vict. c. 36),
s. 11, ' Any person falsely or fraudulently signing any such declara-
tion (c), in the name of any other person, whether such person shall
be living or dead ; and every person transmitting as genuine any
false or falsified declaration, knowing the same to be false or falsified,
and any person knowingly and wilfully making any false state-
ment of fact in such declaration, shall be guilty of a misdemeanor,
and punishable by fine or imprisonment for a term not exceeding
one year, and the revising barrister shall have power to impound any
such declaration.'

By the Parliamentary and Municipal Registration Act, 1878 (41 & 42
Vict. c. 26), s. 25, ' If any person falsely or fraudulently signs any
such declaration [as last aforesaid] (d), or any declaration either as
claimant or witness in respect of a claim to vote as a lodger in the name

(a) R. V. Hall [1891], 1 Q.B. 747, ante, p. correctly described on the county voters'

11. list, or who has received an objection

(6) See 2 & 3 Will. IV. c. 45, s. 76 (penal founded on the second column of the list,

action) ; 6 & 7 Vict. c. 18, ss. 43, 52, 97 ; The declaration may be made before a

30 & 31 Vict. c. 58, s. 28 ; 30 & 31 Vict. commissioner of oaths or a justice of the

c. 102, ss. 28, 29 ; 31 & 32 Vict. c. 58, ss. 28, peace.

29; 32 & 33 Viet. c. 41, s. 10; 41 & 42 Vict. [d) i.e., in s. 24, viz. a declaration as to

c. 26, ss. 10, 26, 36 ; 48 & 49 Vict. o. 3, misdescription of the name, place of abode,

s. 9 (3) ; 48 & 49 Vict. o. 15, s. 16. or qualification of the voter, or other errors

by a person whose place of abode is not borough or burgess list.

634 Of Offences with Reference to Registration, [book viii.

of any other person whether that person is Hving or dead, or in a fictitious
name, or sends as genuine any false or falsified declaration knowing the
same to be false or falsified, or knowingly and wilfully makes any false
statement of fact in any declaration of the nature aforesaid, he shall be
guilty of a misdemeanor, and punishable by fine or by imprisonment
for a term not exceeding one year, and the revising barrister shall have
power to impound such declaration.'

Sect. II.— Official Misconduct with Eeference to Elections,
{a) Misconduct by the Returning Officer and his Staff.

Wilful delay, neglect, or refusal duly to return any person who ought
to be returned to Parliament is dealt with under sect. 48 of the Parliamen-
tary Elections Act, 1868 (31 & 32 Vict. c. 125), without prejudice to any
power of Parliament to punish the ofiicer (e).

Wilful misfeasance by a returning officer or presiding officer or clerk
in the execution of his ofiice would seem to be a misdemeanor indict-
able at common law ; in addition to the penalties incurred under sect.
11 of the Ballot Act, 1872 (35 & 36 Vict. c. 33), and sect. 61 (1) of the
Corrupt, &c., Practices Prevention Act, 1883 (46 & 47 Vict, c. 51).

By sect. 50 of the Eepresentation of the People Act, 1867 (30 & 31
Vict. c. 102), ' No returning officer for any county or borough, nor his
deputy, nor any partner or clerk of either of them shall act as agent for
any candidate in the management or conduct of his election as a member
to serve in Parliament for such county or borough and if any returning
officer, his deputy, the partner, or clerk of either of them shall so act, he
shall be guilty of a misdemeanor (/).

Mayors, — The duties of mayors as to elections for Parliament are
prescribed by the Acts above stated. Their duties as to municipal
elections are prescribed by the Municipal Corporations Act, 1882 (45
& 46 Vict. c. 50) (g). By sect. 75 they incur liability to a fine recoverable
by action for neglecting or refusing to conduct or declare an election.

(b) Neglect or Delay in Delivering Parliamentary Election Writs.

The Parliamentary Writs Act, 1813 (53 Geo. III. c. 89), enacts (s. 1)
that the messenger, or pursuivant of the great seal, or his deputy, shall,
after the receipt of such writs, forthwith carry such of them as shall
be directed to the sheriffs of London or Middlesex, to the respective
officers of such sheriffs, and the other writs to the general post-office in
London, and there deliver them to the postmaster-general for the time
being, or to such other person as the postmaster shall depute to receive
the same (which deputation the postmaster is thereby required to make),

(e) Rogers on Elections (18th ed.). Vol. Corry, 5 East, 372, where it was held that

ii. p. 81. May, Pari. Pr. (11th ed.). 2 voluntary absence from an election was not

Douglas, Election Cases, (2nd ed.), 177. indictable unless presence was necessary to

(/) This section is applied by s. 11 of the constitute a legal meeting of the corpora-
Ballot Act, 1872, to any returning oflScer tion for the election. That Act was re-
or officer appointed by him in pursuance pealed as to boroughs subject to the Muni-
o£ that Act, and to his partner or clerk. oipal Corporations Act, 1882 (45 & 40 Vict.

{g) These duties were formerly regulated c. 50), by s. 5 of that Act ; and repealed in

by 11 Geo. I. c. 4, s. 6, on which see R. v. toto in 1887. (S. L. E.)

CHAP, jv.] Of Official Misconduct with Reference to Elections. 635

who, on receipt thereof, shall give an acknowledgment in writing, ex-
pressing therein the time of delivery, and shall keep a duplicate of such
acknowledgment signed by the parties respectively to whom and by whom
the same shall be so delivered ; and that the postmaster or his deputy
shall despatch all such writs free of postage, by the first post or mail,
after the receipt thereof, under covers directed to the proper officers, to
whom the said writs shall be respectively directed, accompanied with
proper directions to the postmaster or deputy postmaster of the place,
or nearest to the place where such officers shall hold their office, requiring
such postmaster or deputy forthwith to carry such writs respectively to
such office, and to deliver them there to the officers to whom they shall be
respectively directed, or their deputies, who are required to give to such
postmaster or deputy a memorandum in writing, acknowledging the
receipt of every such writ, and setting forth the day and the hour the same
was deUvered by such postmaster or deputy, and which memorandum
shall also be signed by such postmaster or deputy, who is required to
transmit the same by the first or second post afterwards to the post-
master general or his deputy at the general post-office in London, who are
required to make an entry thereof in a proper book for that purpose,
and to file the memorandum along with the duplicate of the said acknow-
ledgment, signed by the messenger, to the intent that the same may be
inspected or produced upon all proper occasions by any person interested
in such elections.

The statute, after directing that aU persons to whom the writs for
the election of members to Parliament ought to be and are usually
directed, shall, within a month after the passing of the Act (July 2, 1813)
send to the postmaster-general an account of the places where they shall
hold their offices, and so from time to time, as often as such places shall
be changed ; and of the post town nearest to such offices ; or in case
any such office shall be in the cities of London, Westminster, or the
borough of Southwark, or within five miles thereof, shall send such
account to the messenger of the great seal (h).

By sect. 6, ' Every person concerned in the transmitting or delivery
of any such writ as aforesaid who shall wilfully neglect or delay to deliver
or transmit any such writ, or accept any fee, or do any other matter or
thing in violation of this Act, shall be guilty of a misdemeanor, and may
upon any conviction upon any indictment or information in his Majesty's
Court of King's Bench be fined and imprisoned at the discretion of the
Court for such misdemeanor ' (i).

{h) Ss. 2, 3. The portions omitted from or gratuity for conveyance or delivery of
ss. 2, 3 were repealed in 1873 (36 & 37 Vict. the writs. So much of the section as
0. 91, s. 2). S. 4 was repealed by the Great commuted fees formerly payable was re-
Seal Offices Act, 1874 (37 & 38 Vict. c. 81), pealed in 1873 (36 & 37 Vict. v. 91).
which makes provision for the transfer of S. L. R.

the duties of the messenger or pursuivant (i) This was the rule under the old law.

of the great seal to an officer to be ap- Coombe v. Pitt, 1 W. Bl. 523. For old

pointed by the Lord Chancellor (ss. 4, 12). decisions on election petitions, see Douglas,

S. 5 forbids the messenger of the great seal Election Cases (2nd ed.), 1802.
and his deputies to receive or take any fee

636 Of Offences with Reference to Elections, [book viii,

Sect. Ill,— Corrupt and Illegal Practices at Elections.

(a) Definitions of Corrupt Practices, &c.

Parliament. — The statute law relating to corrupt and illegal practices
at Parliamentary elections is now embodied in the Corrupt and Illegal
Practices Prevention Acts, 1883 and 1895, and the enactments scheduled
thereto, and in the Pubhc Meetings Act, 1908 (8 Edw. VII. c. 66), s. 1.

Definitions. — By the Corrupt and Illegal Practices Prevention Act,
1854 (17 & 18 Vict. 0. 102), s. 38, ' Throughout this Act, in the construction
thereof, except there be something in the subject or context repugnant
to such construction, . . . the word " election " shall mean the election
of any member or members to serve in Parliament ; and the words
"returning officer" shall apply to any person or persons to whom, by virtue
of his or their office under any law, custom, or statute, the execution of
any writ or precept doth or shall belong for the election of a member or
members to serve in Parliament, by whatever name or title such person
or persons may be called ; . . . and the word "voter" shall mean any
person who has or claims to have a right to vote in the election of a
member or members to serve in Parliament.'

By the Corrupt and Illegal Practices Prevention Act, 1883 (46 & 47
Vict. c. 51); s. 64, ' In this Act unless the context otherwise requires —

The expression " election " means the election of a member or
members to serve in Parliament.

The expression " election petition " means a petition presented in
pursuance of the Parliamentary Elections Act, 1868 (31 & 32 Vict. c. 125),
as amended by this Act.

The expression " election Court " means the judges presiding at the
trial of an election petition or, if the matter comes before the High Court,
that Court.

The expression " petson " includes an association or body of persons
corporate or incorporate, and where any act is done by any such association
or body, the members of such association or body who have taken part
in the commission of such act shall be liable to any fine or punishment
imposed for the same by this Act.

The expression " indictment " includes information.
The expression " costs " includes costs and charges and expenses.'
Corrupt Practice. — By the Corrupt and Illegal Practices Prevention
Act, 1883 (46 & 47 Vict. c. 51), s. 3, ' The expression " corrupt practice "
as used in this Act, means any of the following offences : namely,
treating {j) and undue influence (h) as defined in this Act, and bribery (f),
and personation (m) as defined by the enactments set forth in part iii.
of the third schedule to this Act, and aiding, abetting, counselling, and
procuring the commission of the offence of personation, and every offence

(?) Post, p. 641. (I) Post, p. 638.

{k) Post, p. 642. (to) Post, p. 642.

CHAP. IV.] Of Corrupt and Illegal Practices. 637

which is a corrupt practice within the meaning of this Act shall be a
corrupt practice within the meaning of the Parliamentary Elections Act,
1868 (31 & 32 Vict. c. 125), supra.

Municipal Eleetions.^The law as to corrupt practices in municipal
elections is contained in the Municipal Corporations Act, 1882, as
amended in 1884.

By the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), part iv.
(Corrupt Practices), s. 77, ' In this part, bribery, treating, imdue influence,
ajid personation, include respectively anything done, before, at, after, or
with respect to a municipal election which, if done before, or after, or with
respect to a parliamentary election, would make the person doing the
same liable to any penalty, punishment, or disqualification for bribery,
treating, undue influence, or personation as the case may be under any
Act for the time being in force with respect to parliamentary elections ' (n).

By the Municipal Election, Corrupt, &c., Practices Prevention Act,
1884 (47 & 48 Vict. c. 70), s. 2 (1), ' The expression " corrupt practices "
means in this Act any of the following offences, namely, bribery, treating,
undue influence, and personation, as defined in the enactments set forth in
part i. of the third schedule to this Act (o), and aiding, abetting, counsel-
ling, and procuring the commission of the offence of personation.'

Subsect. (2), 'A person who commits any corrupt practice in reference
to a municipal election shall be guilty of a like offence, and shall on
conviction be liable to the like punishment and be subject to the like
incapacities as if the corrupt practice had been committed at a
parliamentary election.'

The statutory provisions as to corrupt practices at municipal elections
apply to elections of the mayor, aldermen, or councillors, auditors, &c.,
of a municipal borough, of improvement commissioners (p), to county
council elections (q), to elections in the City of London (r), subject to the
provisions of a local Act (50 & 51 Vict. c. xiii. ), and of metropolitan borough
councillors (s), councillors of urban (t) and rural (m) districts, and of
rural parishes (v), and guardians of urban districts (w), and in London (x).

Punishment. — By 46 & 47 Vict. c. 51, s. 6 (1), ' A person who commits
any corrupt practice other than personation or aiding, abetting, counsel-
ling or procuring the commission of the offence of personation, shall be
guilty of a misdemeanor, and on conviction on indictment, shall be liable
to be imprisoned, with or without hard labour, for a term not exceeding
one year, or to be fined any sum not exceeding £200.'

(2) ' A person who commits the offence of personation, or of aiding,
abetting, counselling or procuring the commission of that offence (w),

(m) Ss. 78-80, 82-84 of part iv. are re- & 0. February 26, 1903.
pealed and replaced by the Municipal («) 56 & 57 Vict. c. 73, s. 48 (3), and

Elections Corrupt, &c.. Practices Preven- Stat. R. & 0. (1898) No. 1.
tlon Act, 1884 (temp.). (u) Ibid. Stat. R. & 0. (1898) No. 2.

(o) The scheduled enactments are those (v) Ibid. Stat. R. & 0. (1901) No. 2.

set out under the different offences named, (w) Ibid. ss. 20, 23, 28 : 59 & 60 Vict.

post, pp. 638-647. o. 1 : Stat. R. & 0. (1898) No. 4. In

(p) 47 & 48 Vict. c. 70, sched. 1. rural districts the rural district councillors

(}) 51 & 52 Vict. 0. 41, s. 75 (1). Bx are also guardians of the poor.
parte Walker, 20 Q.B.D. 384. (x) Ibid. Stat. R. & 0. (1898) No. 15.

(r) 47 & 48 Vict. c. 70, s. 36. (y) See Rogers on Elections (18th ed.),

(s) 62 & 63 Vict. c. 14, s. 2, and Stat. R. Vol. ii. p. 371.

638 Of Offences with Reference to Elections, [bookviii.

shall be guilty of felony, and any person convicted thereof on indictment
shall be punished by imprisonment for a term not exceeding two years,
together with hard labour/

Subsect. (3) provides for disqualification for seven years of any
person convicted of a corrupt practice, in addition to the punishment
above provided.

(6) Bribery at Elections.

Common Law. — ' Bribery at elections for members of Parliament
must undoubtedly always have been a crime at common law,' and
consequently punishable by indictment or information (z).

The offence consists in corruptly and illegally giving rewards or
making promises of rewards of money or money's worth in order to
procure votes for members to serve in Parliament (a). Thus giving
refreshments to voters before they vote in order to induce them to vote
for a particular candidate, is bribery at common law (h).

Bribery in connection with the election to a municipal (c) or
parochial \d) office appears to be a misdemeanor at common law.

Statute. — The statutory definition of bribery (e) appHes both to
parliamentary (/) and to municipal elections (g).

By the Corrupt and Illegal Practices Prevention Act, 1854 (17 & 18
Vict. c. 102), s. 2 (h), ' The following persons shall be deemed guilty of
bribery, and shall be punishable accordingly —

(1) ' Every person who shall, directly or indirectly, by himself, or by
any other person on his behalf (i), give, lend, or agree to give or lend, or
shall offer (j), promise (k), or promise to procure, or to endeavour to
procure, any money, or valuable consideration, to or for any voter, or to
or for any person on behalf of any voter, or to or for any other person,
in order to induce any voter to vote, or refrain from voting, or shall

{z) R. II. Pitt, 3 BuiT. 1335, 1338, Lord tinued by the Expiring Laws Continuance

Mansfield. He added that by 2 Geo. II. Act (vide 8 Edw. VII. o, 18).
c. 24 (rep.), ' the legislature never meant to (i) Where a friend of the candidate gave

take away the common law crime but to an elector five guineas to vote, and took

add a penal action.' See R. v. HoUis, 20 from him a note for that sum, but at the

St. Tr. 1225, for precedent of an informa- same time gave a counter note to deliver

tion for bribery at a parliamentary election. up the first note when the elector had

And see Rogers on Elections (18th ed.), voted, the gift was held absolute and to be

Vol. ii. p. 294. bribery within 2 Geo. II. c. 24. Sulston v.

(a) R. V. Pitt, uhi supra. Norton, 3 Burr. 1235. Cf. Cooper v. Slado,

(6) Hughes V. Marshall, 2 0. & J. 118. 6 H. L. C. 746. As to bribery by giving

(d) R. V. Lancaster, 16 Cox, 737 (assist- another person, who paid money to the
ant overseer of the poor). Wills, J. electors, see Webb v. Smith, 4 Bing. (N. C.)

(e) In R. D. Pitt, 3 Burr. 1335, 1339, it 373.

was held that the statute against bribery (j) Acceptance is not necessary to consti-

(2 Geo. II. c. 24) was in aid of the common tute the offence. Coventry case [1869],

law and did not supersede it. Cf. Coombe 1 O'M. & H. 107.

or Combe v. Pitt, 3 Burr. 1423, 1586. R. (k) A letter was written to an out- voter,

V. Heydon, 3 Burr. 1359, 1387. Pugh v. requesting him to come to a borough, and

Curgerwen, 3 Wils. (K.B.) 35, and cases record his vote for S. A postscript added,

collected in 1 Hawk. c. 67, s. 13. ' Your railway expenses will be paid.' The

(/ ) Vide infra. voter did come and vote as requested : his

(g) 47 & 48 Vict. u. 70, s. 2, ante, p. 637. travelling expenses were paid. Held, that

(h) This section is included in sched. 3 of the promise and payment constituted only

the Corrupt and Illegal Practices Preven- one act of bribery within this section.

tion Act, 1883, which is annually con- Cooper v. Slade, 6 H. L. C. 746.

CHAP. IV.] Of Bribery. 639

corruptly (l) do any such act as aforesaid, on account of such voter having
voted or refrained from voting at any election (11) :

(2) ' Every person who shall, directly or indirectly, by himself or by
any other person on his behalf, give or procure, or agree to give or procure,
or offer, promise, or promise to procure, or to endeavour to procure, any
office, place, or employment (m) to or for any voter, or to or for any person
on behalf of any voter, or to or for any other person, in order to induce
such voter to vote, or refrain from voting, or shall corruptly do any such
act as aforesaid, on account of any voter having voted or refrained from
voting at any election :

(3) ' Every person who shall, directly or indirectly, by himself or by any
other person on his behalf (n), make any such gift, loan, ofTer, promise,
proc\;rement, or agreement as aforesaid, to or for any person, in order to
induce such person to procure, or endeavour to procure, the return of any
person to serve in Parliament, or the vote of any voter at any election (o) :

(4) ' Every person who shall, upon or in consequence of any such
gift, loan, offer, promise, procurement, or agreement, procure or engage,
promise, or endeavour to procure the return of any person to serve in
Parliament, or the vote of any voter at any election :

(5) ' Every person who shall advance or pay, or cause to be paid, any
money to or to the use of any other person with the intent that such
money or any part thereof shall be expended in bribery at any election,
or who sha.U knowingly pay or cause to be paid any money to any person
in discharge or repayment of any money wholly or in part expended in
bribery at any election.' (Here follows a proviso excepting legal
expenses bona fide incurred.)

Sect. 3 (p). ' The following persons shall also be deemed guilty of
bribery, and shall be punishable accordingly—

(1) ' Every voter who shall, before or during any election, directly
or indirectly, by himself or by any other person on his behalf, receive,
agree, or contract for any money, gift, loan, or valuable consideration,
office, place, or employment for himself or for any other person, for
voting or agreeing to vote, or for refraining or agreeing to refrain from
voting, at any election :

(2) ' Every person who shall, after any election, directly or indirectly,
by himself or by any other person on his behalf, receive any money or
valuable consideration on account of any person having voted or refrained
from voting, or having induced any other person to vote or to refrain
from voting, at any election. . . . '

By the Kepresentation of the People Act, 1867 (30 & 31 Vict. c. 102),

(l) See Rogers on Elections (18th ed.), or the recipient of the bribe never meant to

Vol. ii. p. 300. vote as desired. In Harding v. Stokes

(U) Caldicott v. Worcester Election [1837], 2 M. & W. 233, an action under

Commissioners, 21 Cox, 404, 409. 5 & 6 Will. IV. c. 76, s. 54 (rep.), for cor-

(ot) See Lichfield case, 1 O'M. & H. 27, rupting a voter in a municipal election, the

and Rogers on Elections (18th ed.), Vol. ii. offence was held to be complete when the

p. 302. bribe was offered and accepted, and the

{n) See Cooper v. Slade, 6 H. L. C. 746. promise made to vote as desired, even if

(o) InHenslowK. Fawcett, 3 A. & E. 51, the promise were broken or was never

an action for penalties under 2 Geo. II. meant to be kept.

c. 24, s. 7 (rep.), for giving money to induce {p) Also included in sohed. 3 of the Cor-

a man to vote, it was held that the penalty rupt, &c., Practices Prevention Acts, 1883

was incurred even if the vote was not given and 1884, sup-a.

640 Of Offences with Reference to Elections. [book viil.

s. 49, ' Any person, either directly or indirectly, corruptly paying any
rate on behalf of any ratepayer for the purpose of enabling him to be
registered as a voter, thereby to influence his vote at any future election,
and any candidate or other person, either directly or indirectly, pajring
any rate on behalf of any voter for the purpose of inducing him to vote
or refrain from voting, shall be guilty of bribery, and be punishable
accordingly ; and any person on whose behalf, and with whose privity
any such pajonent as in this section is mentioned, is made, shall also be
guilty of bribery, and punishable accordingly' {q). For punishment
see 46 & 47 Vict. c. 51, s. 6, ante, p. 637.

Most of the decisions relating to bribery are on election petitions
and not on indictments for the offence. Where a test ballot was resorted
to in order to determine which of three candidates should stand, it was
held that bribery at such test ballot was within sect. 2, subsect. 3 of the
Act of 1854 (r). It is bribery to make payments to a voter for loss of
time while going to deliver his vote (s) ; or corruptly to pay rates for
the purpose of enabling a ratepayer to be registered and influencing his
vote at a future election {t), or to make pa3Tnent corruptly for attend-
ance at a revising Court {u), or to give money to induce a voter to vote
under colour of a bet («). It has never been decided that a wager upon
an election is bribery per se, but if made corruptly there can be little
doubt that it would be so (w). A corrupt promise of refreshments to
voters to induce them to vote is bribery (x). And the giving of money
ostensibly for the purpose of charity may be an act of bribery if done
corruptly, of which the excessive or indiscriminate nature of the gifts
may be evidence (y). So also it seems payment of money to induce
a person to personate a voter is bribery {z). A voter may be bribed
though he is disqualified {a). It is immaterial at what time before the
election the act of bribery is committed if it be done with a view to
influence a voter at a coming election (6).

It seems that pajrment of money to a voter after the election is over
for having voted is not bribery unless there was a corrupt promise before
the election to pay him (c). In 17 & 18 Vict. c. 102, s. 2 (1), the word
' corruptly ' is inserted only as to payments after elections. (Vide ante,
p. 639.)

(q) As to Scotland, see 31 & 32 Vict. (x) Bodmin case [1869], 1 O'M. & H.

c. 48, s. 49 ; 44 & 45 Vict. c. 40, s. 2 (17). 124. Montgomery case, 4 O'M. & H.

(r) Brett v. Robinson, L. R. 5 C. P. 503. 69.

\s) Taunton case [1869], 1 O'M. & H. (y) Windsor case, 2 O'M. & H. Boston

183. Simpsonw. Yeend, 38L. J. Q.B. 313. case, 2 O'M. & H. 161. See Rogers on

(t) 30 & 31 Vict. c. 102, s. 49, swpra. Elections (18th ed.), Vol. ii. p. 310.

Cheltenham case [1869], 1 O'M. & H. 64. (2) Coventry case, 1 O'M. & H 105

(«,) Hastingscase[1869], 10'M.&H. 219. (a) Guildford case, 1 O'M. & H. 14,

\v) Under 2 Geo. IT. c. 24 (rep.), laying Willes, J.

a wager with a voter that he did not vote (6) Hastings case, 1 O'M. & H. 219.

for a particular candidate was held bribery. (c) See Cooper v. Slade, 6 H. L. C. 746.

1 Hawk. c. 67, s. 10, note (4), citing anon. Lord Wensleydale. The election judges

Lofft, 552, and referring also to Allen u. have differed on this subject. See Brad-

Hearn, 1 T. R. 56, where a wager between ford case, 1 O'M. & H. 36, Martin, B.

two voters, with respect to the event of an Stroud case, 2 O'M. & H. 184, Bramwell'

election, laid before the poll began, was B., in favour of the proposition in the text!

held to be illegal. Harwich case, 3 O'M. & H. 71, Lush, J."

(w) See Rogers on Elections (18th ed.), contra. As to the law under 2 Geo.' IL

Vol. ii. 321, where Allen v. Hearn, 1 T. R. c. 24, see Lord Huntingtower v. Gardiner"

56, and other cases are collected. 1 B. & C. 297. '

CHAP. IV.] Of Bribery and Treating. 641

A parliamentary election was about to take place at C. ; S. was one of
the candidates. In the committee-room of S. the question was discussed
whether paying the expense of bringing up out-voters was legal. S.,
after referring to a law-book, said that it was, but limited it to the payment
of expenses out of pocket. A circular had been previously prepared and
printed, requesting out-voters to come up and vote for S. Upon S.
making this declaration of his opinion, a clerk to an agent of S. (without
any express direction from S. or from the agent) wrote at the bottom of
each circular, ' Your railway expenses will be paid.' A voter who resided
at H. received one of the circulars with this added note ; he came to C,
voted for S., and afterwards received the sum of S.?., the expenses to which
he had hona fide been, put by his journey. It was held, that the words
added to the circular must be treated as written by the authority of S. ;
that the promise and payment were forbidden by 17 & 18 Vict. c. 102, s. 2,
ante, p. 638, and that for the purposes of that statute they must be treated
as ' corruptly ' made (d). If a man employs an agent to corrupt voters,
and that agent in carrying such general instructions into effect employs
subordinate agents within the scope of the authority received from the
principal, it would seem that the principal, with reference to the express
terms of this statute, as well as upon general principles of law, will be
guilty of a misdemeanor (e).

Bribery is not triable at quarter sessions (17 & 18 Vict. c. 102, s. 10).

Voting by Agents, &e. — By the Representation of the People Act,
1867 (30 & 31 Vict. c. 102), s. 11, ' No elector who within six months before
or during any election for any county or borough shall have been retained,
hired, or employed for all or any of the purposes of the election for reward
by or on behalf of any candidate at such election as agent, canvasser, clerk,
messenger, or in other Uke employment, shall be entitled to vote at such
election, and if he shall so vote he shall be guilty of a misdemeanor ' (/).

By the Corrupt, &c., Practices Prevention Act, 1883 (46 & 47 Vict,
c. 51), s. 1, (1) ' Any person who corruptly by himself or by any other person,
either before, during or after an election, directly or indirectly gives
or provides, or pays wholly or in part the expense of giving or providing
any meat, drink, entertainment or provision to or for any person for the
purpose of corruptly influencing that person or any other person to give or
refrain from giving his vote at the election, or on account of such person or
any other person having voted or refrained from voting, or being about to
vote or refrain from voting, at such election, shall be guilty of treating.

(2) ' And every elector who corruptly accepts or takes any such meat,
drink, entertainment or provision, shall also be guilty of treating.' This
is extended to municipal elections (47 & 48 Vict. c. 70, s. 2, sched. 3,
part i.). For punishment see 46 & 47 Vict. c. 51, s. 6, ante, p. 637. The
offence is not triable at quarter sessions (17 & 18 Vict. c. 102, s. 10).
A corrupt promise of refreshments to voters to induce them to vote has
been held bribery (gr).

{d) Cooper v. Slade, 6 H. L. C. 746. [g) Bodmin case [1869], 1 O'M. & H. 124,

(e) R. V. Leatham, 3 L. T. 504. Willes, J. Montgomery case, 4 O'M. & H.

(/) Adapted to divided boroughs by 169. Salford case, 1 O'M. & H. 41. See

48 & 49 Vict. 0. 23, s. 15. Rogers on Elections (18th ed. ), Vol. ii. p. 333.

VOL. I. 2 T

642 Of Offences with Reference to Elections, [book viii.

{d) Undue Influence.

By the Corrupt, &c., Practices Prevention Act, 1883, sect. 2, ' Every
person who shall directly or indirectly, by himself or by any other
person on his behalf make use of or threaten to make use of any force,
violence, or restraint, or inflict, or threaten to inflict by himself or by
any other person any temporal or spiritual injury, damage, harm or
loss upon or against any person in order to induce or compel such
person to vote or refrain from voting, or on account of such person
having voted or refrained from voting at any election, or who shall
by abduction, duress or any fraudulent device or contrivance, impede
or prevent the free exercise of .the franchise of any elector, or shall
thereby compel, induce or prevail upon any elector either to give or to
refrain from giving his vote at any election, shall be guilty of undue
influence ' {h). This section is extended to municipal, &c., elections
(47 & 48 Vict. 0. 70, s. 2, and sched. 3, part i.). For punishment see
46 & 47 Vict. c. 51, s. 6, ante, p. 637. The offence is not triable at quarter
sessions (t).

(e) Personation.

It does not seem to be clear whether personation of a voter at an
election is an oiience at common law (j). By the Ballot Act, 1872 (35 &
36 Vict. c. 33), s. 24 {k), ' the following enactments shall be made with
respect to personation at parliamentary and municipal elections :

' A person shall, for all purposes of the law relating to parhamentary (Z)
and municipal elections be deemed to be guilty of the oiJence of
personation who at an election for a county or borough, or at a municipal
election (m), applies for a ballot paper in the name of some other person,
whether that name be that of a person Hving or dead (n), or of a fictitious
person (o), or who, having voted once at any such election, applies at
the same election for a ballot paper in his own name. . . .'

' It shall be the duty of the returning officer to institute a prosecution
against any person whom he may believe to have been guilty of person-
ation, or of aiding, abetting, counselling, or procuring the commission of

(h) It is intimidation to threaten the c. 18).

deprivation of that which it would be bri- (I) Including elections of members for

bery to promise the enjoyment of. West- universities (s. 31).

bury case, 1 O'M. & H. 52. It is also (m) i.e., an election of any person to

intimidation to threaten a withdrawal of serve the office of councillor, auditor, or

custom or dismissal from employment with assessor of a borough subject to 'the

intent to influence the vote of a voter. R. Municipal Corporation Acts, 35 & 36

V. Barnwell, 5 W. R. 558. Blackburn Vict. o. 33, s. 29 ; 45 & 46 Vict. c. 50. In

case, 1 O'M. & H. 204. R. v. Turner, 12 Cox, 313, on an indictment

(s) 46 & 47 Vict. o. 51, B. 53, fost, p. 648. under this section for an offence at a muni-

(j) In R. V. Bent, 1 Den. 157 : 2 C. & K. cipal election, it was ruled not to be

179, it seems to have been considered that necessary to produce the charter of the city,

personation at a municipal election was not (n) Under 14 & 15 Vict. c. 105 s. 13 it

an offence at common law. This opinion was held that there could be no personation

was doubted in R. v. Clarke [1900], 2 Ir. of a dead voter. Whitelev v Chanell 11

Rep. 304, Pallas, C.B. See also R. v. Cox, 307. '

Thompson, 2 M. & Rob. 355. (o) A person may have two names and

(k) Included m sched. 3, part ui. of the may vote in that name by which he is

Corrupt, &c. Practices Prevention Act, 1883, described on the register. R. v. Fox [18871

and annually continued (see 8 Edw. VII. 16 Cox, 166.

CHAP. IV.] Personation and False Answers. 643

the offence of personation by any person, at the election for which he is
returning officer, [and the costs and expenses of the prosecutor and the
witnesses in such case, together with compensation for their trouble and
loss of time, shall be allowed by the Court in the same manner in which
Courts are empowered to allow the same in cases of felony] ' (p).

' The provisions of the Eegistration Acts {q), specified in the third
schedule to this Act, shaU in England and Ireland respectively apply
to personation under this Act in the same manner as they apply to a
person who knowingly personates and falsely assumes to vote in the
name of another person as mentioned in the said Acts. . . .' By 46 & 47
Vict. c. -51, s. 6, personation is made a felony. As to punishment see
ante, p. 637. The offence is not triable at quarter sessions (r).

By 22 Vict. c. 35, s. 9 (rep.), if, pending or after any election of coun-
cillors, auditors, or assessors, any person shallpersonate, or induce any other
person to personate, any person entitled to vote at such election, &c., he
might be summarily convicted by two justices. H., pending an annual
election of councillors, gave a nomination paper signed by one B. to F.,
and asked him to take it to a schoolroom and vote. F, said it was not
his name that was on it. H. told him to vote for W. and,T., and said he
was to take the paper and put it down before a gentleman he woiild see
sitting, and that they would not say anything to him. F. took the paper,
and put it into the hands of the presiding officer at the schoolroom for
the reception of votes for the said ward ; and the officer, being so required,
asked F., ' Are you the person whose name is signed as B. to the voting
paper now delivered by you ? ' and F. answered, ' No.' B.'s name was at
the time on the burgess roll. The voting paper was not filed, nor was the
vote of B. recorded in consequence of the paper being so handed in.
Two justices convicted H. for inducing F. to personate B. at the said
election, and the sessions, on appeal, confirmed the conviction, subject to
the opinion of the Court of Queen's Bench, whether H. had, under the
above facts, committed the alleged offence ; and it was urged that, as
F. did not vote, and on being asked, at once declared that he was not B.,
he had not been guilty of personation, and therefore H. had not been
guilty of inducing him to commit it. But it was held that if a man goes
up to a voting place and represents himself as another person, it is a
false personation. Here F. gave in a voting paper, and so represented
himself to be another person, and thereby the personation was
complete (s).

(/) False Answers hy Voters.

By sect. 81 of the Parliamentary Eegistration Act, 1843 (6 & 7
Vict. c. 18), ' In all elections whatever of a member or members of

(p) Words in brackets repaaled as to are extended to personation at municipal

England, by 8 Edw. VII. o. 15, s. 10, post, elections by 45 & 46 Vict. c. 50, ». 86.

Bk. xii. 0. V. (r) 46 & 47 Vict. c. 51, s. 53, -post, p. 648.

(g) 6 & 7 Vict. c. 18, ss. 85-89 ; 13 & (s) R. v. Hague, 9 Cox, 412. The con-

14 Vict. u. 69, ss. 92-96, both inclusive. viction merely alleged that H. ' unlawfully

These enactments provide for taking the and knowingly did induce P. to personate

offender into custody and taking him B. ' : and it was held that it was good, and

before a magistrate. The powers of detect- that it was not necessary to state the

ing personation and arresting personators means of the inducement.

2t2

644 Of Offences with Reference to Elections. [book viii.

Parliament for any county, riding, parts, or division of a county, or
for any city or borough in England and Wales no inquiry shall be
permitted at the time of polling as to the right of any person to vote
except only as foUows, that is to say, that the returning officer (t) or
his respective deputy shall if required on behalf of any candidate (m), put
to any voter at the time of his tendering his vote and not afterwards,
the following questions or either of them : —

1. Are you the same person whose name appears as A. B. on the

riding, parts or division of the county of ] or for the city

[or borough] of — [as the case may be] ?

2. Have you already voted either here or elsewhere at this election

for the county of [or for the riding, parts or of the

county of — — ] or for the city [or borough] of [as the case may

fe]?

And if any person shall wilfully (v) make a false answer to either of the
questions aforesaid he shall be deemed guilty of a misdemeanor and shall
and may be indicted and punished accordingly ; and the returning officer
or his deputy . . . shall, if required on behalf of any candidate at the time
aforesaid administer an oath to any voter in the following form : —

You do swear [or affirm, as the case may he] that you are the same
person whose name appears as A. B. in the register of voters now in force

for the county of [or for the — riding, parts or

division of the county of or for the city [or borough] of [as

the case may he], and that you have not before voted either here or else-
where at the present election for the county of [or for the

riding, parts, or division of the county of or for the city

[or borough] of , [as the case may he]. So help you God ' (w).

By sect. 59, sub-sect. (1) of the Municipal Corporations Act, 1882
(45 & 46 Vict. c. 50), ' At an election of councillors the presiding officer
shall, if required by two burgesses, or by a candidate or his agent, put to
every person offering to vote at the time of his presenting himself to vote,
but not afterwards, the following questions or either of them : —

(a) Are you the person enrolled on the burgess [or ward] roll now in
force for this borough [or ward] as follows ? [read the whole entry from
the roll].

(h) Have you already voted at the present election ? [add in case of
an election for several wards, in this or any other ivard] ' (x).

By sub-sect. (3), ' If any person wilfully make a false answer thereto,
he shall be guilty of a misdemeanor ' («/).

By sect. 13 (4) of the Eedistribution of Seats Act, 1885 (48 & 49 Vict.

it) Or his lawful deputy. 35 & 36 Vict. v. Bowler, C. & M. 659. R. v. Ellis C &

0. 33, ss. 1, 10. M. 564. R. v. Dodswortli, 2 M. & Rob. 72.

(«) e.g.,oy hia agent or a person acting R. «. Irving, 2 M. & Rob. 75, note (o). R.

as suck R. V. Spaldmg, C. & M. 568. v. Harris, 7 0. & P. 253. R. v Lucy C &

W See posJ, p. 645 M. 310. As to Ireland see 13 & 14 vW. c.

(w) This section takes the place of 2 & 3 69, s. 88.

WiU. IV. c. 45, s. 58 _ The" oath against (x) This section takes the place of 4 & 5

bribery was abohshed in 1854 (17 & 18 WUl. IV. c. 76 s 34

Vict._c. 102). The question as to qualifiea- (y) This 'section does not apply to the

tion m 2 & 3 Wi 1. IV o. 45, s. 58, is no city of London. As to declaration before

longer required. As to that question, see R. polling, see 30 Vict. c. 1, ss. 6, 7.

CHAP. IV.] False Answers at Elections. 645

c. 23), ' In a borough divided into divisions, the election for two or more
of such divisions shall be deemed to be the same election within the mean-
ing of the enactments relating to personation (z) and to voting, and the
question which may be asked of voters at the poll shall be, " Have you

already voted here or elsewhere at the election for the borough of ,

either in this or any other division ? " '

By sect. 10 of the Ballot Act, 1872 (35 & 36 Vict, c. 33), 'any presiding
officer and any clerk appointed by the returning officer to attend at
a poUing station, shall have the power of asking questions and adminis-
tering the oath authorised by law to be asked of and administered to
voters. . . .'

An indictment against a voter under 2 & 3 \Vill. IV. c. 45, s. 58 (a),
for giving a false answer at an election seems to have been insufficient
if it merely stated that the voter gave the answer at an election,
and did not aver the writ for holding the election, or that the election
was duly held (6).

On an indictment under 2 & 3 Will. IV. c. 45, s. 58, it was held that
the word ' wilfully' must be for giving a false answer at the poll, construed
in the same way, arid supported by the same sort of evidence, as in an
indictment for perjury. To be untrue is not enough ; for to be wilful it
must have been false to the knowledge of the party at the time (c).

The first four counts of an indictment upon sect. 34 of the Municipal
Corporations Act, 1835 (d), stated that the defendant, upon delivering
in a voting paper, in the name of a burgess entitled to vote at the
election, was asked by the presiding officer the three questions in the
terms of the Act, and then alleged, ' to which questions (each of the
two first) the defendant then and there falsely and fraudulently answered,
"I am." ' Williams, J., after consulting Patteson, J., held that these
four counts were bad for omitting the word wilfully. ' Wilfully to
make a false answer to the question ' proposed was the definition of the
offence by the legislature itself, and it was a safe and certain rule that
the words of the statute must be pursued (e). The prisoner was indicted
for falsely answering a question at a municipal election under the same
section. The prisoner's father, W. G., had been a burges sin St. Albans
and those names remained on the overseer's lists ; but he had been absent
from home for a considerable time ; and the prisoner, whose name was
also W., resided in the same house, and paid the parish rates, &c. At a
municipal election the prisoner offered to vote, and being asked, ' Are
you the person whose name appears as W. G. on the burgess roll
now in force ? ' answered ' Yes.' There was only one W. G. on the roll.
Wightman, J., held that there was no case against the prisoner (/).

(z) Ante, p. 642. (c) R. v. Ellis, C. & M. 564

(a) Superseded by the above enactments (d) 5 & 6 Will. IV. c. 76, repealed in

and repealed by the Ballot Act, 1872 (35 & 1882 (45 & 46 Vict. c. 50), and replaced by

36 Vict. c. 33), itself a temporary Act a. 59, ante, p. 644.

(continued by 8 Edw. VII. c. 18). (c) R. v. Btmt, 1 Den. 157.

(6) R. V. Bowler, C. & M. 559. R. v. (/) R. v. Coodman, 1 P. & F. 502.

Ellis, C. & M. 564.

646 Of Offenc&s with Reference to Elections. tBOOKvni.

(g) Illegal Practices.

Sects. 7-12 of the Corrupt and Illegal Practices Prevention Act, 1883,
and sects. 1, 2 of the Corrupt Practices Prevention Act, 1895 (58 & 59
Vict. c. 40) (g) deal with illegal practices, and sects. 7-13 of the Act of
1883 with illegal payments or hirings (h). These are all punishable on
summary conviction subject to an appeal to quarter sessions (s. 10)
and to the power to convict of an illegal practice on an indictment for
a corrupt practice (s. 52, post, p. 649). Illegal practices, &c., at
municipal elections are dealt with by sects. 4-18 of the Municipal
Elections (Corrupt, &c.. Practices) Act, 1884 (47 & 48 Vict. c. 70).

(h) Offences Relating to Nomination and Voting Papers.

By the Ballot .-Vet, 1872 (35 & 36 Vict. c. 33) (i), sect. 3, ' every
person who

(1) Forges or fraudulently defaces or fraudulently destroys any
nomination paper, or delivers to the returning officer any
nomination paper, knowing the same to be forged ; or

(2) Forges or counterfeits or fraudulently defaces or fraudulently
destroys any ballot paper or the official mark on any ballot
paper ; or

(3) Without due authority supplies any ballot paper to any person ;
or

(4) Fraudulently puts into any ballot box any paper other than
the ballot paper which he is authorised by law to put in ; or

(5) Fraudulently takes out of the polling station any ballot paper ;
or

(6) Without due authority destroys, takes, opens, or otherwise
interferes with any ballot box or packet of ballot papers then
in use for the purposes of the election :

shall be guilty of a misdemeanor, and be liable, if he is a returning officer
or an officer or clerk in attendance at a polling station, to imprisonment
for any term not exceeding two years, with or without hard laboiir, and
if he is any other person, to imprisonment for anj-- term not exceeding
six months, with or without hard labour.'

Any attempt to commit any offence specified in this section shall
be punishable in the manner in which the offence itself is punishable.

In any indictment or other prosecution for an offence in relation
to the nomination papers, ballot boxes, ballot papers, and marking
instruments at an election, the property in such papers, boxes, and
instruments may be stated to be in the returning officer at such elections,
as well as the property in the counterfoils (j).

On the trial of an indictment for fraudulently placing ballot papers

ig) This Act makes it an illegal practice («) Continued annually. See 8 Edw.

to make or publish for the purpose of VII. c. 18.

affecting the return of a candidate at a (j) Infringement of the secrecy of the

parliamentary election, a false state- ballot by officials and agents at polling

ment of fact in relation to the personal stations is summarily punishable (s. 4).

character or conduct of the candidate. Voters cannot be compelled to disclose how

{Ji) See Rogers on Elections (18th ed.), they voted (s. 12).
Vol. ii. c. xiii.

CHAP. IV.] Of Indidment, Procedure, &c. 647

in a ballot box at a municipal election contrary to sub-sect. 4 of sect. 3
a sealed packet was produced under the order of a county court judge,
obtained under sched. 1, rules 40, 41, part ii. r. 64, of the Ballot Act,
and the counterfoils and marked register and voting papers produced
therefrom were given in evidence and the face of the voting papers
inspected : Held, that the evidence was properly admitted {k).

Municipal Elections. — By the Municipal Corporations Act, 1882
(45 & 46 Vict. c. 50), s. 74, ' If any person forges or fraudulently defaces
or fraudulently destroys any nomination paper, or delivers to the town
clerk any forged nomination paper, knowing it to be forged, he
shall be guilty of a misdemeanor, and shall be liable to imprisonment
for any term not exceeding six months, with or without hard labour.

' (2) An attempt to commit such an offence shall be punishable as the
offence is punishable.'

By sect. 58 of that Act, sect. 3 of the Ballot Act, 1872, swpra, is applied
to contested municipal elections (l).

(i) Offences After an Election.

False Declaration as to Election Expenses. — 46 & 47 Vict. c. 51, s.
33, provides that a declaration as to expenses shall be made by the
candidate, and a return of such expenses by his agent ; and by sub-sect.
7, ' If any candidate or election agent knowingly makes the declaration
required by this section falsely he shall be guilty of an offence, and on
conviction thereof on indictment shall be liable to the punishment for
wilful and corrupt perjury ; such offence shall also be deemed to be a
corrupt practice within the meanijig of this Act ' (m).

Improper Withdrawal of Election Petition. — By 46 & 47 Vict. c. 51,
s. 41, sub-sect. 4, ' If any person makes any agreement or terms, or enters
into any undertaking in relation to the withdrawal of an election
petition, and such agreement, terms or undertaking is or are for the
withdrawal of the election petition in consideration of any payment, or
in consideration that the seat shall at any time be vacated, or in consider-
ation of the withdrawal of any other election petition, or is or are (whether
lawful or unlawful) not mentioned in the aforesaid affidavits (w), he shall
be guilty of a misdemeanor, and shall be liable on conviction on indict-
ment to imprisonment for a term not exceeding 12 months, and to a fine
not exceeding £200 ' (o).

{j) Indictment and Procedure.

Wide powers are given to Courts for the trial of election petitions
to punish summarily persons guilty at elections of corrupt and illegal
practices, which do not fall within the scope of this work {f).

By the Corrupt Practices Prevention Act, 1863 (26 & 27 Vict. c. 29),
s. 6, ' In any indictment or information for bribery or undue influence,

(h) R. V. Beardsall, 1 Q.B.D. 452. petition : s. 41, sub-ss. 1-3, 5. As to elec

(I) iS. 20 of the Ballot Act, 1872, was tion coats and petitions, see Rogers on

repealed by ss. 5, 260 of the Act of 1882. Elections (18th ed.), Vol. ii. p. 215.

(m) A like provision is made as to muni- (o) A similar provision is made as to

oipal elections by 47 & 48 Vict. c. 70, s. 21 municipal elections by 47 & 48 Vict. c. 70,

(5). s. 26 (4).

(«) To be filed on application to the (p) See Rogers on Elections (18th ed.),

Election Court for leave to withdraw the Vol. ii. c. vi.

648 Of Offences with Reference to Elections. [book viii.

and in any action or proceeding for any penalty for bribery, treating,
or undue influence, it shall be sufficient to allege that the defendant was
at the election at or in connection with which the offence is intended to
be alleged to have been committed guilty of bribery, treating, or undue
influence (as the case may require) ; and in any criminal or civil pro-
ceedings in relation to any such offence the certificate of the returning
officer in this behalf shall be sufficient evidence of the due holding of the
election (r), and of any person therein named having been a candidate
thereat.'

This section is extended by 46 & 47 Vict. c. 51, s. 53, infra, to indict-
ments for corrupt practices as defined ante, p. 636. On an indictment
for personation at an election held before this Act, it was ruled that the
election writ or an examined copy must be put in evidence (s). It is
not necessary under the present law to allege in the indictment or prove
that the presiding officer at the polling station at which the personation
is charged to have occurred was duly appointed {t).

An indictment for a corrupt practice which does not specifically
describe it is bad for generality if challenged before verdict {u).

By 46 & 47 Vict. c. 51, sect. 53 (1), ' Sects. 10, 12 and 13 {v), of the
Corrupt Practices Prevention Act, 1854 (17 & 18 Vict. c. 102), and sect.
6 {w) of the Corrupt Practices Prevention Act, 1863, sufra (which relate
to prosecutions for bribery and other offences under those Acts), shall
extend to any prosecution on indictment for the offence of any corrupt
practice within the meaning of this Act, and to any action for any
pecuniary forfeiture for an offence under this Act, in like manner as if such
offence were bribery within the meanhig of those Acts, and such indict-
ment or action were the indictment or action in those sections
mentioned, and an order under the said sect. 10 may be made on the
defendant, but the Director of Public Prosecutions, or any person insti-
tuting any prosecution in his behalf or by direction of an election Court,
shall not be deemed to be a private prosecutor nor required under the
said sections to give any security.'

(2) ' On any prosecution under this Act, whether on indictment or
summarily, and whether before an election Court or otherwise, and in
any action for a pecuniary forfeiture, under this Act, the person prose-
cuted or sued, and the husband or wife of such person, may, if he or she
think fit, be examined as an ordinary witness in the case ' [w).

(r) See Reed v. Lamb [1860], G H. & N. duoe books, papers, &o., necessary for

75. R. V. Clarke, 1 F & F. 654. arriving at the truth of the things to be

(.s) R. V. Vaile, 6 Cox, 470, Crompton, J. inquired into by them; and provides that all

(t) R. u. Garvey, 16 Cox, 253. persons ' shall answer all questions put to

(u) R. V. Norton, 16 Cox, 59, Pollock, B. them by the commissioners touching the

It seems to be good after verdict. R. v. matters to be inquired into by them, and

Stroulger, 17 Q.B.D. 327. shall produce all books, papers, deeds and

(d) S. 10 denies junsdiction to quarter writings required of them, and in their

sessions. Ss. 10, 12, 13 are repealed as to custody or under their control, aocordin<' to

costs in England by 8 Edw. VII. ^. 5, s. 10, the tenor of the summons: provided alwVs

post, Bk. xn. u. v. that no statement made by any person in

(w) I tde post, Bk. xni. c. v. 15 & 16 answer to any questions put by such com-

Vict. c. 57, s. 8, empowers election com- missioners shall, except in cases of indict-

missioners to summon any person whose ment for perjury committed in such answers

evidence they may deem material to the be admissible in evidence in any proceeding

inqmry, and to require any person to pro- civil or criminal.' See R. ■;;. Leatham 30

CHAP, iv.i Of Indictment and Trial. 649

(3) ' On any such prosecution or action as aforesaid it shall be sufficient
to allege that the person charged was guilty of an illegal practice, pay-
ment, employment, or hiring within the meaning of this Act, as the case
may be, and the certificate of the returning officer at an election, that
the election mentioned in the certificate was duly held, and that the person
named in the certificate was a candidate at such election, shall be sufficient
evidence of the facts therein stated.'

By sect. 52, ' Any person charged with a corrupt practice, may, if
the circumstances warrant such finding, be found guilty of an illegal
practice (which offence shall for that purpose be an indictable offence),
and any person charged with an illegal practice may be found guilty
of that offence notwithstanding that the act constituting the offence
amounted to a corrupt practice, and a person charged with illegal
payment, employment, or hiring may be found guilty of that offence
notwithstanding that the act constituting the offence amounted to a
corrupt or illegal practice.'

In an action for bribery at an election, the register of voters at an
election, made in pursuance of 6 & 7 Vict. c. 18, ss. 48, 49, was held to be
a document of such a public nature as to be admissible upon its mere
production by the returning officer, and an examined or certified copy
was held admissible (a;).

Where a book, which was in writing, and duly signed, contained the
register of voters, Byles, J., held, that though there ought to be a copy
of the list printed in a book and duly signed, in order to constitute
a proper register, yet this register, though irregular, was valid and
admissible in evidence («/).

15 & 16 Vict. c. 57, s. 8 (p. 648, note (w) ), does not prevent the putting
in evidence on an information for bribery a document produced before
commissioners, for the proviso to that section applies only to statements
made {z).

Trial of Offences.— By 46 & 47 Vict. c. 51, s. 43 (subsects. 1-3), pro-
vision is made for the attendance of the Director of IPublic Prosecutions
at the trial of election petitions. Sub-sect. 4 provides for the summary
trial by the election Court of any person prosecuted by the Director for
corrupt or illegal practices, but in the case of a ' corrupt ' practice the
Court must give the person charged the option of being tried by a jury.

By sub-sect. 5, ' Where a person is so prosecuted for any such offence,
and either he elects to be tried by a jury or he does not appear before the
Court, or the Court thinks it in the interests of justice expedient that he

L. J. Q.B. 205. The section is extended 1851 (14 & 15 Vict. c. 99), and the Evidence

by 31 & 32 Vict. c. 125, s. 56, to eommis- Amendment Act, 1853 (16 & 17 Vict. u. 83),

sioners to inquire into corrupt practices at but subject to and with the exceptions

elections. By 17 & 18 Vict. c. 102, s. 55, 'On contained in such several Acts, provided

the trial of any action for recovery of any always, that any such evidence shall not

pecuniary penalty under this Act, the thereafter be used in any indictment or .

parties to such action, and the husbands criminal proceeding under this Act against

and wives of such parties respectively, the party giving it.'

shall be competent and compellable to give (x) Reed v. Lamb, 6 H. & N. 75.

evidence in the same manner as parties, (y) R. v. Clarke, 1 F. & P. 654. R. v.

and their husbands and wives are compe- Colebourne, ibid.

tent and compellable to give evidence in (z) R. v. Leatham, 30 L. J. Q.B. 203.
actions and suits under the Evidence Act,

650 Of Offences with Reference to Elections, [book viil.

should be tried before some other Court, the Court, if of opinion that the
evidence is sufficient to put the said person upon his trial for the offence,
shall order such person to be prosecuted on indictment, or before a Court
of Summary Jurisdiction as the case may require for the said offence,
and in either case may order him to be prosecuted before such Court
as may be named in the order, and for all purposes preliminary and of and
incidental to such prosecution the offence shall be deemed to have been
committed within the jurisdiction of the Court so named ' (a).

(6) ' Upon such order being made, (a) if the accused person is present
before the Court and the offence is an indictable offence, the Court shall
commit him to take his trial, or cause him to give bail to appear and take
his trial for the said offence.' . . .

(c) ' if the accused person is not present before the Court, the Court
shall, as circumstances require, issue a summons for his attendance, or
a warrant to apprehend him and bring him before a Court of summary
jurisdiction, and that Court, if the offence is an indictable offence (&),
shall, on proof only of the summons or warrant and the identity of the
accused, commit him to take his trial, or cause him to give bail to appear
and take his trial for the said offence ' . . . (c).

Sect. 45 provides for the institution of prosecutions by the Director
of Public Prosecutions, and sect. 46 for the removal of any incapacity
proved to have been brought about by perjured evidence.

By sect. 50, ' Where an indictment as defined by this Act {vide ante, p.
636), for any offence under the Corrupt Practices Prevention Acts, or this
Act is instituted in the High Court or is removed into the High Court by
a writ of certiorari issued at the instance of the Attorney-General, and the
Attorney-General suggests on the part of the Crown that it is expedient
for the purposes of justice that the indictment should be tried in the
Central Criminal Court, or if a special jury is ordered, that it should be
tried before a judge and jury at the Eoyal Courts of Justice, the High
Court may, if it think fit, order that such indictment shall be so tried
upon such terms as the Court may think just, and the High Court may
make such orders as appear to the Court necessary or proper for carrying
into effect the order for such trial.'

Limitation of Time. — By sect. 51 (1), ' A proceeding against a person
in respect of the offence of a corrupt or illegal practice or any other offence
under the Corrupt Practices Prevention Acts or this Act, shall be com-
menced within one year after the offence was committed, or, if it was
committed in reference to an election with respect to which an inquiry is
held by election commissioners, shall be commenced within one year after
the offence was committed, or within three months after the report of
such commissioners is made, whichever period last expires, so that it be
commenced within two years after the offence was committed, and the
time so limited by this section shall, in the case of any proceeding under
the Summary Jurisdiction Acts for any such offence whether before an
election Court or otherwise, be substituted for any limitation of time
contained in the last mentioned Acts.'

(a) See R. v. Shellard, 23 Q.B.D. 273. (c) Provisions identical with this section

R. V. Ripley, 17 Cox, 120. are made as to municipal elections, 47 & 48

(6) See R. v. Shellard, libi supra. Vict. c. 70, s. 28.

CHAP, tv.] Of Trial and, Evidence. 651

(2) ' For the purposes of this section the issue of a summons, warrant,
writ, or other process shall be deemed to be a commencement of a pro-
ceeding when the service or execution of the same on or against the
alleged offender is prevented by the absconding or concealment or act of
the alleged offender, but, save as aforesaid, the service or execution of
the same on or against the alleged offender, and not the issue thereof,
shall be deemed to be the commencement of the proceeding.'

By sect. 55 (2), ' The enactments relating to charges before justices
against persons for indictable offences shall, so far as is consistent with
the tenor thereof, apply to every place where an election Court orders a
person to be prosecuted on indictment, in like manner as if the Court were
a justice of the peace.' (See 11 & 12 Vict. c. 42 : 30 & 31 Vict. c. 35.)

By sect. 56 (1), ' Subject to any rules of Court any jurisdiction vested
by this Act in the High Court may, so far as it relates to indictments or
other criminal proceedings, be exercised by any judge of the King's Bench
Division, and in other respects may either be exercised by one of the
judges for the time being on the rota for the trial of election petitions,
sitting either in Court or at chambers, or may be exercised by a master
of the Supreme Court of Judicature in manner directed by and subject
to an appeal to the said judges.'

It is, however, provided that a master shall not exercise jurisdiction
to grant exceptions or excuses. The Court has power to make rules
regulating procedure and practice.

By sect. 57 (1), ' The Director of Public Prosecutions, in performing
any duty under this Act, shall act in accordance with the regulations
under the Prosecution of Offences Act, 1879 (42 & 43 Vict. c. 22) (d),
and subject thereto, in accordance with the directions (if any) given to him
by the Attorney- General, and any assistant or representative of the
Director of Public Prosecutions in performing any duty under this Act,
shall act in accordance with the said regulations and directions, if any,
and with the directions given to him by the Director of Public
Prosecutions ' (e).

Evidence— Certificate of Indemnity. — By sect. 59 (1), 'A person
who is called as a witness respecting an election before any election Court
shall not be excused from answering any question relating to any offence
at or connected with such election on the ground that the answer thereto
may criminate or tend to criminate himself, or on the ground of privilege.

Provided that —

(a) A witness who answers truly all questions which he is required
by the election Court to answer shall be entitled to receive a certificate
of indemnity under the hand of a member of the Court stating that such
witness has so answered ; and

(b) An answer by a person to a question put by or before any election
Court shall not, except in the case of any criminal proceeding for perjury
in respect of such evidence (/) be in any proceeding, civil or criminal*
admissible in evidence against him.

{d) As amended by the Prosecution o£ Q.B. 605, and 8 Edw. VII. c 15, post,

Offences Act, 1908 (8 Edw. VII. c. 3), fost, Bk. xii. c. v.

Vol. ii. p. 1924.. ' (/) A witness before such a commission

652 Of Offences with Reference to Elections, [book viii.

(2) Where a person has received such a certificate of indemnity in
relation to an election, and any legal proceeding is at any time instituted
against him for any offence under the Corrupt Practices Prevention Acts
or this Act, committed by him previously to the date of the certificate,
at or in relation to the said election, the Court having cognizance of the
case shall, on proof of the certificate, stay the proceeding, and may in their
discretion award to the said person such costs as he may have been put
to in the proceeding.

(3) Nothing in this section shall be taken to relieve a person receiving
a certificate of indemnity from any incapacity under this Act, or from any
proceeding to enforce such incapacity (other than a criminal prosecution).

(4) This section shall apply in the case of a witness before any election
commissioners in like manner as if the expression " election Court " in this
section included election commissioners.

(5) Where a soHcitor or person lawfully acting as agent for any party
to an election petition respecting any. election for a county or borough
has not taken any part or been concerned in such election, the election
commissioners inquiring into such election shall not be entitled to examine
such solicitor or agent respecting matters which came to his knowledge
by reason only of his being concerned as soHcitor or agent for a party to
such petition.'

By sect. 60, ' An election Court or election commissioners, when
reporting that certain persons have been guilty of any corrupt or illegal
practice, shall report whether those persons have or not been furnished
with certificates of indemnity, and such report shall be laid before the
Attorney- General (accompanied, in the case of commissioners, with the
evidence on which such report was based), with a view to his instituting
or directing a prosecution against such persons as have not waived
certificates of indemnity, if the evidence should in his opinion be sufficient
to support a prosecution.'

Municipal Elections By 47 & 48 Vict. c. 70, s. 30, ' Subject to the

other provisions of this Act, the procedure for the prosecution'of a corrupt
or illegal practice, or any illegal payment, employment, or hiring, com-
mitted in reference to a municipal election, and the removal of any
incapacity incurred by reason of a conviction or report relating to any
such offence, and the duties of the Director of Public Prosecutions in
relation to any such offence, and all other proceedings in relation thereto
(including the grant to a witness of a certificate of indemnity, shall be the
same as if such offence had been committed in reference to a parliamentary
election ; and sects. 45 & 46 and sects. 50-57, both inclusive, and sects.

before it, indicted for perjury committed indictments for perjury as to oases of in-

before a judge, on the trial of an election dictments for perjury, must be considered

petition in respect of the same election with to mean perjury committed in answer to

reference to which he was examined before questions put by the commissioners on the

.the commissioners. Statements made by inquiry, and not to perjury generally, and

such witness, in answer to questions put by therefore that the above evidence was not

the commissioners relative to corrupt prac- admissible. R. v. Buttle, L. B. 1 C. C. R.

tioes at such election, were given in evi- 248. The words of 46 & 47 Vict. c. 51,

dence against him to prove the indictment a. 59, are ' except in the case of any criminal

for perjury. Held, that the exception in proceeding for perjury,' and this would

the proviso to 26 & 27 Vict. c. 29, s. 7, seem to destroy the effect of R. v. Slator,

which provided an exception in the case of 8 Q.B.D. 267.

CHAP. IV.] Of Municifal Elections. 653

59 and 60 of the Corrupt and Illegal Practices Prevention Act, 1883
(46 & 47 Vict. 0. 51) {g), shall apply accordingly as if they were re-enacted
in this Act, with the necessary modifications, and with the following
additions :—

a. Where the Director of Public Prosecutions considers that the
circumstances of any case require him to institute a prosecution before
any Court other than an election Court, for any offence other than a
corrupt practice committed in reference to a municipal election in any
borough, he may, by himseU or his assistant, institute such prosecution
before any Court of summary jurisdiction in the county in which the said
borough is situate, or to which it adjoins, and the offence shall be deemed
for all purposes to have been committed within the jurisdiction of such
Court ;

h. General rules for the purposes of part iv. of the Municipal Corpora-
tions Act, 1882 (45 & 46 Vict. c. 50), shall be made by the same authority
as rules of Court under the said sections {h) ; and

c. The giving or refusal to give a certificate of indemnity to a witness
by the election Court shall be final and conclusive ' (i).

(g) Vide ante, pp. 651, 652. printed in Stat. R. & 0. Eevised (ed. 1904),

(h) i.e., by the rule making authority Vol. xii.. Supreme Court E., p. 656.

for the Supreme Court, 46 & 47 Vict. c. 51, (i) See Rogers on Elections (18th ed.),

H. 56. The rules made April 17, 1883, are Vol. iii.

( 654a )

CANADIAN NOTES.

OF OFFENCES WITH REFERENCE TO THE REGISTRATION OF ELECTORS AND
VOTING, ETC., AT ELECTIONS.

Dominion Elections.

See Revised Statutes of Canada (1906), ch. 6, sees 247-307
inclusive.

Sec. 1. — Offences in Connection with the Preparation of Elections

Lists.
Dominion Election Act.

Refusal or omission by provincial officer to record changes on

list of voters. See R.S.C. ch. 6, sec. 247.
Refusal of provincial custodian to transmit to clerk of Crown in
Chancery copies of lists. See R.S.C. ch. 6, sec. 248.

Sec. 2. — Official Misconduct with Reference to Elections.

(a) Misconduct by Returning Officer and his Staff. — See R.S.C.

ch. 6, sec. 249.
Neglect of duty by officials. See R.S.C. ch. 6, sec. 250.
Refusal to furnish returning officer with documents. See R.S.C.

ch. 6, sec. 251.
Election officers acting as agents. See R.S.C. ch. 6, sec. 252.
Improper varying of oath of qualification. R.S.C. ch. 6, sec. 253.
Illegally refusing a ballot to an elector in Prince Edward Island.

R.S.C. ch. 6, sec. 254.
Delay, neglect or refusal of returning officer to return election

candidate. R.S.C. ch. 6, sec. 257.
Failure to maintain secrecy during poll. R.S.C. ch. €, sec. 258.

Sec. 3. — Corrupt and Illegal Practices at Elections.

(a) Definition of Corrupt Practices. — See R.S.C. ch. 6, sec. 278.
(&) Bribery at Elections.

Giving money, etc., to procure votes. R.S.C. ch. 6, see. 265;
amended, 7 & 8 Edw. VII. ch. 9, sec. 29.

Giving or promising employment. R.S.C. ch. 6, see. 265.

Gifts or promises. R.S.C. eh. 6, sec. 265.

Advancing money to be used in bribing. R.S.C. eh. 6, sec. 265.

Demanding bribe of candidate or agent. R.S.C. ch. 6, sec. 265.

6546 Election Offences. [bookviii.

Bribery at Elections. — Continued.

Receiving money, etc., before, during or after an election. R.S.C.

ch. 6, sec. 265.
Bribery of candidates. R.S.C. eh. 6, see. 265.
Paying for conveyances of voters to polls. R.S.C. ch. 6, see. 270 ;

amended, 7 & 8 Bdw. VII. ch. 9, sec. 30.
Disqualification of voters for receiving payment for conveyances.

7 & 8 Bdw. VII. eh. 9, sec. 31.

By candidate. R.S.C. ch. 6, sec. 266.

During election. R.S.C. ch. 6, sec' 267.

On nomination or polling day. R.S.C. ch. 6, sec. 268.

(d) Undue Influence. .

Undue influence. R.S.C. ch. 6, sec. 269.
False pretences. R.S.C. ch. 6, sec. 269.
Personation. R.S.C. ch. 6, see. 272.

Subornation of. R.S.C. ch. 6, sees. 273, 274.
Voting of prohibited persons. R.S.C. ch. 6, see. 275.

(e) False Answers hy Voters. — R.S.C. ch. 6, sec. 274.
(/) Illegal Practices.

Defacing proclamation, etc. 7 & 8 Edw. VII. ch. 9, sec. ^4.
Refusal to obey summons of returning officer.- R.S.C. ch. 6,

sec. 256.
Weapons, carrying, etc. R.S.C. ch. 6, sec. 260.
Weapons, refusing to give up. R.S.C. ch. 6, sec. 259.
Spirituous liquors, selling, etc., on polling day. R.S.C. ch. 6,

see. 261.
Payments, making otherwise than through agents. R.S.C. ch. 6,

see. 262 ; amended, 7 & 8 Edw. VII. ch. 9, sec. 28.
Making untrue statements as to election expenses. R.S.C. ch. 6,

sees. 263, 264.
False statements of withdrawal of candidates. R.S.C. ch. 6,

sec. 276.
Canvassing by person not residing in Canada. 7 & 8 Edw. VII.

eh. 9, sec. 33.
Printing advertisements, etc., without printer's address. 7 & 8

Edw. VII. ch. 9, see. 34.
Contributions by companies, etc., to political purposes. 7 & 8

Edw. VII. ch. 9, sec. 36.
iff) Offences Relating to Ballot Papers.
Ballot papers, forgery of, illegal supplying of, fraudulently put-
ting in box, taking out of polling station, destroying, removing

from box, illegally initialling, etc. R.S.C. ch. 6, sec. 255;

amended, 7 & 9 Edw. VII. ch. 9, sec. 26.

CHAP. IV.] Provincial Election Acts. 654c

Offences Relating to Ballot Papers. — Continued.

False statement as to candidate. 7 & 8 Bdw. VII. eh. 9, sec. 35.
Displaying or disclosing marted ballots. R.S.C. ch. 6, sec. 258 ;
amended, 7 & 9 Bdw. VII. ch. 9, sec. 27.

(h) Offences After an Election.

Delay, neglect or refusal of returning officer to return elected
candidate. R.S.C. ch. 6, sec 257.

Default of agent in delivering statements of expenses to return-
ing officer. R.S.C. ch. 6, see. 263.

Furnishing untrue statements of election expenses. R.S.C. ch. 6,
sec. 264.

(i) Indictment and Procedure.
Jurisdiction —

Magistrate having. R.S.C. ch. 6, sec. 300.

Quarter Session's Court incompetent. R.S.C. ch. 6, sec. 306.
"Warrants of Arrest, etc. —

Information. R.S.C. eh. 6, sees. 284, 294, 298.

Security for costs. R.S.C. ch. 6, sec. 285.

Allegations necessary. R.S.C. ch. 6, sees. 286, 293.

Detention of offender. R.S.C. ch. 6, see. 295.

Issue of. R.S.C. ch. 6, sec. 296.

Execution of warrant. R.S.C. ch. 6, sees. 296, 299.

Summons to Offender —
Issue of. R.S.C. eh. 6, sec. 302.
Disobedience to. R.S.C. ch. 6, sec. 303.

Procedure —

Criminal Code to apply. R.S.C. ch. 6, sec. 301.
Determination of action. R.S.C. ch. 6, see. 304.
Appropriation of fines. R.S.C. ch. 6, sec. 305.
Costs, may be awarded to prosecutor. R.S.C. ch 6 sees
291, 292.

Evidence —

Husband and wife, as to. R.S.C. ch. 6, sec. 287.
No privilege or excuse from answering questions. R.S C
ch. 6, see. 288.

Production of election writs not required. R.S C ch 6
see. 289. , " ' ' ' '

Clerk of Crown in Chancery must produce ballots if required
R.S.C. eh. 6, see. 290.

Limitation of time for prosecutions. R.S.C. ch. 6, sec. 307.

654d Election Offences. [bookviii.

Provincial Election Acts.

Alberta.— See 9 Edw. VII. eh. 3.

Registration offences. Sees. 82-87.

Preservation of peace at elections. Sees. 241-291 and sec. 296.
British Columbia.

Provincial elections. Sec. 3 & 4 Edw. VII. (B.C.), ch. 17, sees.
166-188 and 197-208; see also amendment in 6 Edw. VII.
ch. 18.

Municipal elections. 8 Edw. VII. ch. 14, sees. 94-105.
Manitoba.— See R.S.M. (1902), ch. 3, sees. 239-295 and 305-306.
New Brunswick. — Consolidated Statutes (1908), vol. 1, ch. 3.
Nova Scotia.— See 9 Edw. VII. ch. 6 ; sees. 10 and 83-120 and 123.
Ontario.

Provincial. See 8 Edw. VII. ch. 3, sees. 167-202 .and 207.

Municipal. See 3 Edw. VII. ch. 19, sees. 193-197 and 245-258.
Quebec— See 3 Edw. VII. ch. 9, sees. 156 and 181-229.
Saskatchewan. — See 8 Edw. VII. ch. 2.

Registration offences 83-88.

Preservation of peace, etc. Sees. 209-259 and 264.

( 655 )

BOOK THE NINTH.

OP OFFENCES AGAINST THE PERSONS, STATUS AND EEPUTATION

OF INDIVIDUALS,

CHAPTER THE FIRST.

OF HOMICIDE.

PART I.— MURDER AND PELO DE SE.

Sect. I. — Definition and Punishment of Murder.

Definition. — Murder (a) is a felony at common law. Its essential
elements are not defined by statute except by the provision in sect. 6 of
the OfEences against the Person Act, 1861 (24 & 25 Vict. c. 100), that ' it
shall be sufficient in any indictment for murder to charge that the
defendant did feloniously, wilfully, and of his malice aforethought, kill
and murder the deceased.'

Murder is the unlawful killing, by any person of sound memory and
discretion, of any person under the King's peace, with malice afore-
thought (6), either express or implied hy law (c). This malice aforethought
which distinguishes murder from other species of homicide (d) is not
limited to particular illwill against the person slain, but means that the
fact has been attended with such circumstances as are the ordinary
symptoms of a wicked, depraved, and malignant spirit ; a heart regardless
of social duty, and deliberately bent upon mischief (e). Any formed
design of doing mischief may be called malice ; and therefore not only
kiUing from premeditated hatred or revenge against the person killed ;
but also, in many other cases, killing accompanied with circumstances
that shew the heart to be previously wicked, is adjudged to be killing
of malice aforethought, and consequently murder (/).

(a) By 24 & 25 Vict. c. 100, s. 8, every s. 3 (I),

offence which before July 1, 1828, would {b) Or malice prepensed, malice pre-

have amounted to petit treason, shall be pensee, malitia proecogitata.

deemed to be murder only, and no greater (c) 3 Co. Inst. 47, 51. 1 Hale, 425, 449,

offence; and all persons guilty in respect 450. Fost. 256. 1 Hawk. o. 31, s. 3.

thereof, whether as principals or as aoces- 4 Bl. Com. 198. 1 East, P. C. 214. R. v.

series, shall be dealt with, indicted, tried, Mawgridge,Kel. (J.) 119,127. R.u. Oneby,

and punished as principals and accessories 2 Ld. Raym. 1487. The older definitions

in murder. As to petit treason, see Fost. are discussed Stephen Dig. Or. L. (6th ed.)

323, 327, 336, 376 ; 1 Hawk. c. 32 ; 4 Bl. art. 244, and p. 407; and see Archb. Cr. PL

Com. 203 ; 25 Edw. III. st. 5 ; Pollock & (23rd ed.) 782.

Maitland Hist. Eng. Law, ii. p. 502. The (d) 4 Bl. Com. 198. R. v. Gastineaux,

merger of this offence in murder has ren- 1 Leach, 417.

dered it unnecessary to repeat the full (e) Fost. 256, 262.

account of it given in earlier editions of this (/) 1 Hawk. c. 31, s. 19. Fost. 257.

work. This section was taken from 9 Geo. 1 Hale, 451-455.
IV. c. 31, s. 2 (E) ; and 10 Geo. IV. c. 34,

656

Of Homicide.

[BOOK IX.

Malice may be either express or implied by law. Express malice is,
when one person kills another with a sedate deliberate mind and formed
design evidenced by external circumstances, which disclose the inward
intention ; as lying in wait, antecedent menaces, former grudges, and
concerted schemes to do the deceased some bodily harm (g). And malice
is implied by law from any deliberate cruel act committed by one
person against another, however sudden (h). Thus where a man kills
another suddenly without any, or without considerable provocation, the
law implies malice ; considering that no person, unless of an abandoned
heart, would be guilty of such an act upon a slight or no apparent
cause (i). So if a man wilfully poisons another the law presumes malice,
though no particular enmity can be proved (j). And in cases of killing by
a wilful act of such nature as shews the person by whom it is committed to
be an enemy to all mankind, the law will infer a general malice from such
depraved inclination to mischief (k). As a general rule, all homicide

ig) 1 Hale, 451. 4 Bl. Com. 199.

(h) 1 East, P. 0. 215.- R. v. Fairbrother,
1 Cr. App. R. 233.

(i) 4 BI. Com. 200.

(/) 1 Hale, 455. 4 Bl. Com. 200.

(k) 1 Hale, 455. 1 Hawk. c. 29, s. 12.
4 Bl. Com. 200. 1 East, P. C. 231. Ma-
litia, in its proper or legal sense, is different
from that sense which it bears in common
speech. In common acceptation it signi-
fies a desire of revenge, or a settled anger
against a particular person : but this is not
the legal sense ; and Holt, C.J., says :
' Some have been led into mistake by not
well considering what the passion of malice
is ; they have construed it to be a rancour
of mind lodged in the person killing for
some considerable time before the commis-
sion of the fact, which is a mistake, arising
from the not well distinguishing between
haired and malice. Envy, hatred and
malice are three distinct passions of the
mind.' Kel. (J) 126. In the Roman law,
maliiia appears to have imported a mixture
of fraud, and of that which is opposite to
simplicity and honesty. Cicero speaks of
it (De Nat. Deor. Lib. 3, s. 30) as ' versuta
et fallax nocendi ratio ; ' and in another
work (De Of&c. Lib. 3, s. 18) he says, ' mihi
quidem etiam verm hwreditates non honestce
videntur, si sint malitiosi^ (i.e. according to
Pearoe, a malo animo profectis) blanditiis
officiorum, rum veritate sed simulatione,
qucesitce.' And see Dig. Lib. 2, Tit. 13,
Lex 8, where, in speaking of a banker, or
cashier giving his accounts, it is said, ' Ubi
exigitur argentarius rationes edere, tunc puni-
tur cum dolo malo non exhibet . . . Dolo
malo autem non ed'idit, et qui malitiose edidit
et qui in totum non edidit.' Amongst us
malice is a term of law importing directly
wickedness, and excluding a just cause or
excuse. Thus Coke, in his comment on the
words per malitiam, says, ' If one be ap-
pealed of murder, and it is found by verdict
that he killed the party se defendendo, this
shall not be said to be per malitiam, because

he had a just cause.' 2 Co. Inst. 384. And
where the statutes speak of a prisoner on
his arraignment standing mute of malice,
the word clearly cannot be understood in
its common acceptation of anger or desire
of revenge against another. Thus where
25 Hen. VIII. o. 3, says, that persons
arraigned of petit treason, &o., standing
' mute of malice or froward mind,' or chal-
lenging, &o., shall be excluded from clergy,
the word malice, explained by the accom-
panying words, seems to signify a wicked-
ness or frowardness of mind in refusing to
submit to the course of justice ; in opposition
to cases where some just cause may be
assigned for the silence, as that it proceeds
from madness, or some other disabihty or
distemper. And in the statute 21 Edw. I.,
De malefactorihus in parcis, trespassers are
mentioned who shall not yield themselves
to the foresters, &c., but ' immo malitiam
suam prosequendo et continuando,' shall fiy
or stand upon their defence. And where
the question of malice has arisen in cases
of homicide, the matter for consideration
has been (as will be seen in the course of
the present and subsequent chapters)
whether the act were done with or without
just cause or excuse ; so that it has been
suggested (Chappie, J., MS. Sum.) that
what is usually called mahce implied by the
law would perhaps be expressed more
intelligibly and familiarly to the under-
standing if it were called malice in a legal
sense. Malice, ' in its legal sense, denotes
a wrongful act done intentionally without
just cause or excuse.' M'Pherson v.
Daniels, 10 B. & C. 272, Littledale, J., and
approved in R. v. Noon, 6 Cox, 137, by
Cress well, J., as the more intelligible ex-
pression. ' We must settle what is meant
by the term malice. The legal import of
this term differs from its acceptation in
common conversation. It is not, as in
ordinary speech, only an expression of
hatred and ill-will to an individual, but
means any wicked or mischievous intention

CHAP. I.]

Definition of Murder.

657

is presumed to be malicious, and murder, until the contrary appears,
from circumstances of alleviation, excuse, or justification (l) ; and it
is incumbent upon the prisoner to make out such circumstances to the
satisfaction of the Court and jury, unless they arise out of the evidence
produced against him (m). A defence grounded upon violent provocation
will not avail, however grievous the provocation, if there was an interval
of reflection, or a reasonable time for the blood to cool before the deadly
purpose was effected. And provocation is no answer if express malice be
proved. Thus if a man, having received provoca.tion, deliberately and
advisedly threatens vengeance against the other, as by declaring that he
will have his blood, or the like, and afterwards carries his design into
execution, he is guilty of murder ; although the killing followed so soon
after the provocation that the law might, apart from evidence of such
express malice, have imputed the act to unadvised passion (n). But
where fresh provocation intervenes between preconceived malice and the
death, it ought clearly to appear that the killing was upon the antecedent
malice ; for if there is an old quarrel between A. and B., and tiey are
reconciled again, and then, upon a new and sudden falling out, A. kills
B., this is not murder (o). But if it appears that the reconciliation
was but pretended or counterfeit, and that the hurt done was upon the
score of the old malice, then such killing will be murder (f).

Where knowledge of some fact is necessary to make a killing murder,
and several persons are concerned in the killing, those who have the
knowledge will be guilty of murder, and those who have it not of man-
slaughter only. Thus if A. assaults B. of malice, and they fight, and A.'s

of the mind. Thus in the crime of murder,
which is always stated in the indictment
to be committed with malice aforethought,
it is neither necessary in support of such
indictment to shew that the prisoner had
any enmity to the deceased, nor would
proof of absence of ill-will furnish the
accused with any defence, when it is proved
that the act of killing was intentional, and
done without any justifiable cause.' R. ■«.
Harvey, 2 B. & C. 268, Best, J. MaUce
does not mean the same thing in criminal
as in civil cases. In criminal cases motive
is usually an essential ingredient in the
definition of an offence or in determining
the appropriate punishment, whereas in
civil cases the law is more concerned with
the fact of an injury than with the motive
for causing it. Quinn v. Leathern [1901],
A. 0. 495. In criminal cases, except of defa-
mation, malice usually denotes intention,
deliberation, or wantonness as distin-
guished from negligence or inadvertence.
See B. V. Senior [1899], 1 Q.B. 283, and
R. V. Ellwood, 1 Or. App. R. 181.

{I) 4 Bl. Com. 201. In B. v. Greenaore
8 C. & P. 35, Tindal, C.J., said, ' where it
appears that one person's death has been
occasioned by the hand of another, it be-
hoves that other to shew from evidence, or
by inference from the circumstances of the
case, that the offence is of a mitigated
character, or does not amount to the crime
VOL. I.

of murder.' Coleridge and Coltman, JJ.,
prcesentibtis.

(m) Fost. 255. 4 Bl. Com. 201. 1 East,
P. C. 224. On an indictment for murder
it appeared that the deceased died of a
wound inflicted in her chest with a knife ;
there was no evidence of any dispute ; the
prisoner asserted that she had killed herself,
and this was his defence. The jury found
the prisoner guilty, ' but we believe it was
done without premeditation.' Byles, J.,
refused to receive this verdict, and told the
jury that ' to reduce the crime to man-
slaughter, it must be shewn that there was
provocation at the time, and provocation
of a serious nature. The prosecutor is not
bound to prove that the homicide was com-
rnitted from malice prepense. If the homi-
cide be proved, the law presumes mahce ;
and although that may be rebutted by
evidence, no such attempt has been made
here. The defence is that the woman took
her own hfe. The question for you is, did
the prisoner take his wife's life or not ? If
he did, it was murder.' R. v. Maloney,
9 Cox, 6. See R. v. Fairbrother, 1 Cr
App. R. 233.

(«) 1 East, P.C. 224.

(o) 1 Hale, 452. It is not to be pre-
sumed in such a case that the parties
fought upon the old grudge. 1 Hawk,
c. 31, 3. 30.

(p) 1 Hale, 452.

2 U

658 Of Homicide. [book ix.

servant come to aid his master, and B. is killed, A. is guilty of murder ;
but the servant, if he knew not of A.'s malice, is guilty of manslaughter
only (q).

Judgment and Execution.— By the Offences against the Person Act,
1861, sect. 1. ' Whosoever shall be convicted of murder shall suffer
death as a felon ' (r). This has been modified by the Children Act, 1908,
as to murder by persons under 16 (s).

Secti 2. Upon every conviction for murder the Court shall pronounce
sentence of death, and the same may be carried into execution, and all
other proceedings upon Such sentence and in respect thereof may be had
and taken, in the same manner in all respects as sentence of death might
have been pronounced and carried into execution, and all other proceed-
ings thereupon and in respect thereof might have been had and taken,
before the passing of this Act (6 Aug., 1861,) upon a conviction for any
other felony for which the prisoner might have been sentenced to suffer
death as a felon ' {t).

By the Capital Punishment Amendment Act, 1868 (31 & 32 Vict,
c. 24) (m), s. 2, judgment of death to be executed on any prisoner sentenced
on any indictment or inquisition for murder, shall be carried into effect
within the walls of the prison in which the offender is confined at the time
of execution. The Act directs that certain persons shall be present at
the execution, &c,

By the Sheriffs Act, 1887 (50 & 51 Vict. c. 55), s. 13 (1), ' Where judg-
ment of death has been passed upon a convict at any Court of assize
or any sessions of oyer and terminer or gaol delivery held for any county
or riding or division or other part of a county («), the sheriff of such
county shall be charged with the execution of such judgment, and may
carry such judgment into execution in any prison which is the common
gaol of his county or in which the convict was confined for the purpose
of safe custody prior to his removal to the place where such Court was
held, and shall, for the purpose of such execution, have the same
jurisdiction and powers over and in the prison in which the judgment
is to be carried into execution, whether such prison is or is not situate
within his county, and over the officers of such prison, as he has by law
over and in the common gaol of his county and the officers thereof,
or would have had if the Prison Act, 1865, and the Prison Act, 1877 (w),
had not passed, and shall be subject to the same responsibility and
duties as if the said Acts had not passed.

(2) This section shall be in addition to and not in derogation of any

power authorised to be exercised by order in Council under the Winter

Assizes Act, 1876 {x), and the Spring Assizes Act, 1879 {y) or either of them,

and of the provisions of the Central Criminal Court (Prisons) Act, 1881 {z).

(q) 1 Hale, 446. Plowd. 100. viotiona in a county for oflEenoes in a county

(r) Taken from 9 Geo. IV. o. 31, s. 3. of a city, see 51 Geo. III. c. 100, a. 1 ; 14

(s) See s. 103 of that Act, ante, p. 205. & 15 Vict. c. 55, s. 23. As to execution of

(t) This section was new in 1861. As to persons sentenced at assizes for Cheshire,

former law, vide ante, p. 206, and Greaves' see 30 & 31 Vict. o. 36, o. 4.

Grim. Law Cons. Acts (2nd ed.), 30. (w) See 40 & 41 Vict. c. 21, a. 30.

(u) Wliich, with certain modifications, (x) 39 & 40 Vict. c. 67.

extends to Scotland and Ireland (see ss. (y) 42 & 43 Vict. u. 1. '

13, 14). (z) 44 & 45 Vict.' c! 64.

(u) As to execution of sentences on con-

CHAP. I.] Punishment of Murder. 659

In the case of prisoners sentenced to death for murder at the winter
or spring assizes, the sentence may be executed in any prison in which
the prisoner was confined for safe custody before his removal to the place
where the assizes were held at which he was convicted. Sentences of
death for murder at the Central Criminal Court are executed at the prison
ordered by the judge or if no order is made, at the prison in which the
prisoner is confined {a).

By 24 & 25 Vict. c. 100, s. 3, ' The body of every person executed
for murder shall be buried within the precincts of the prison in which
he shall have been last confined after conviction, and the sentence of
the Court shall so direct ' (6).

By 31 & 32 Vict. c. 24, s. 6, ' The body of every offender executed
shall be buried within the walls of the prison within which judgment
of death is executed on him, provided that if one of his Majesty's
principal Secretaries of State is satisfied on the representation of the
visiting justices of a prison that there is not convenient space within the
walls thereof for the burial of offenders executed therein, he may, by
writing under his hand, appoint some other fit place for that purpose,
and the same shall be used accordingly (c).

By sect. 15, ' The omission to comply with the provisions of this Act
shall not make the execution of the judgment of death illegal in any case
in which such execution would otherwise have been legal.'

By sect. 5, ' The coroner of the jurisdiction to which the prison
belongs wherein judgment of death is executed on any offender shall
within twenty-four hours after the execution hold an inquest on the body
of the offender and the jury at the inquest shall inquire into and ascertain
the identity of the body and whether judgment of death was duly
executed on the offender. . . .

Execution under Sentence of the High Court. — On the removal by
certiorari after conviction of an indictment for murder committed in
Pembrokeshire and tried in Herefordshire, the Court of King's Bench,
after overruling certain exceptions to the indictment and conviction, held
that the prisoner might be sentenced in the Court of King's Bench and
executed by the marshal at Kennington (d).

In E. ■;;. Garside (e), the prisoners were convicted of murder at Chester,
and sentenced to be executed the next Friday ; and were in the custody

(a) 42 & 43 Vict. c. 1, s. 3, and Orders in Kent-street. Cf. Sissinghurst House case,

Council under that Act and 39 & 40 Vict. 1 Hale 461.

c. 57. (e) 2 A. & E. 266. Cf. R. v. Antrobus,

(ft) Founded on 2 & 3 Will. IV. u. 75, 2 A. & E. 788. In this case it seems to

s. 16, and 4 & 5 Will. IV. c. 26, s. 2. have been ruled that the Attorney-General

(c) By s. 7 power is given to the Secre- as of right could obtain a habeas corpus
tary of State to make rules, &c., to be ob- and certiorari to remove into the King's
served on the execution of judgment of Bench a conviction and judgment at the
death. See Regulations of June 5, 1902, assizes for murder and the bodies of the
Stat. R. & 0. (1904 ed.) vol. x, tit. ' Prism ' prisoners. The prisoners were also given
(E), p. 65. three days to shew cause why execution

(d) R. V. Athos, 1 Str. 553. 8 Mod. should not be awarded. One prisoner
136. 1 Hale, 464, note (r). Cf. R. v. pleaded ore terms (as he might, R. v. Dean,
Taylor, 6 Burr. 2793, where the prisoners 1 Leach, 476) that he was not the actual
are stated by the reporter to have been in murderer, and was entitled to a pardon for
the custody of the marshal, and executed giving information, in accordance with a
at St. Thomas a Waterings at the end of proclamation in the Gazette.

2 u2

660 Of Homicide. [book ix.

of the constable of Chester Castle in that castle which was within the
ambit of the city, but was part of the county of Chester. A question
arose, whether, since the passing of the Law Terms Act, 1830 (/), the
sheriffs of the city or the sheriffs of the county were bound to execute
the sentence {g) ; and both parties refusing to do it, the prisoners had
been from time to time respited. The Attorney-General moved for a
certiorari to remove the record of the conviction and the judgment,
and for a habeas corpus to bring up the prisoners, in order that execution
might be awarded by the King's Bench, and said he considered himself
entitled to the writs as of right : but from respect to the Court, and for
his own justification in the course he adopted, he stated the grounds of
his application, and cited many cases to shew that he was entitled to the
writs as of course, and that the Court of King's Bench might direct
execution to be done by the sheriff of the county of Chester, or the
sheriffs of the city, by the sheriff of Middlesex, or by the marshal of the
King's Bench ; and the writs were forthwith granted by the Court.

The Court refused to hear an application by the sheriff of Middlesex
that he should not be ordered to execute the prisoners, but ultimately
awarded execution to be done by the marshal of the Marshalsea, assisted
by the sheriff of Surrey (h).

Sect. II. — Felo de se.

Self-murder has been regarded as a peculiar instance of malice directed
to the destruction of a man's own life, by inducing him deliberately to
put an end to his existence, or to commit some unlawful malicious act,
the consequence of which is his own death (i). If one man persuades
another to kill himself, the adviser is guilty of murder (j). A man who
kills another, upon his desire or command, is in the judgment of law
as much a murderer as if he had done the killing out of his own head (k).
It is said that in such a case the person killed is not looked upon as a felo
de se, inasmuch as his assent, being against the laws of God and man, is
void (l). But where two persons agree to die together, and one of them at
the persuasion of the other, buys poison and mixes it, and both drink of it,
and he who bought and made the potion survives by using proper remedies
and the other dies ; it is said to be the better opinion, that he who dies
shall be adjudged a felo de se, because aU that happened was originally

(/) 11 Geo. IV. and 1 Will. IV. o. 70. (i) 1 Hawk. c. 9, s. 4. 4 Bl. Com. 189.

See ss. 13, 14, 15. S. 14, which abolished Hales v. Petit, Plowd. 261 (6). See 45 &

the jurisdiction of the courts palatine of 46 Vict. c. 19, as to the interment of per-

Chester, was repealed in 1873 (36 & 37 sons found /cZo de se.
Vict. c. 91). ij) If present when the other kills him-

((/) By the Chester Courts Act, 1867 self. If absent, he is accessory before the

(30 & 31 Vict. c. 36), s. 4, the sheriff fact. R. v. Russell, 1 Mood. 356. By a

of the county of Chester is charged with, Bill introduced into Parliament in 1908, it

and is to carry into effect within the county was proposed to make persons accessory

all sentences of death passed at any assizes before the fact to, or aiders and abettors in,

for the said county, any statute, law, ous- suicide not guilty of murder but punish-

tom, or usage to the contrary notwith- able for a distinct offence,
standing. Previous provision had been {k) 1 Hawk. c. 27, s. 6. R v. Sawyer,

made in 1835 by 5 & 6 Will. IV., repealed Old Bailey, May, 1815, MS. R. v Dvson

in 1874 (37 & 38 Vict. c. 35). R. & R. 523.

(h) 2 A. & E. 276, 277. Cf. the Sissing- (I) 1 Hawk. c. 27, s. 6.

hurst House case, 1 Hale, 461.

CHAP. I.]

Felo de se. 661

owing to his own wicked purpose, and the other only put it in his power
to execute it in that particular manner (m). If a man, attempting to kill
another, misses his blow and kills himself (w), or intending to shoot at
another, mortally wounds himself by the bursting of the gun (o), he is
considered to be felo de se ; his own death being the consequence of an
unlawful malicious act towards another. It has also been said that if A.
strikes B. to the ground, and B. draws a knife and holds it up in his own
defence, and A. in haste falling upon B. to kill him, falls upon the knife,
and be thereby killed, A. isfelo de se (f) ; but this has been doubted {q).

A husband and wife being in extreme poverty and great distress of
mind, the husband said, ' I am weary of my life, and will destroy myself,'
upon which the wife rephed, ' Then I will die with you.' The man
prayed the wife to go and buy ratsbane and they would drink it together.
She did so and mixed it with some drink, and they both partook of it.
The husband died, but the wife, by drinking salad oil, which caused
sickness, recovered, and was tried for the murder of her husband {r), and
acquitted, but solely on the ground that, being the wife of the deceased,
she was under his control ; and inasmuch as the proposal to commit
suicide had been first suggested by him, it was considered that she was
not a free agent, and therefore the jury, under the direction of the judge
who tried the case, pronounced her not guilty (s).

The prisoner was indicted for the murder of a woman by drowning
her. The prisoner and the deceased had cohabited for several months and
she was pregnant by him. They were in a state of extreme distress, and
had no place of shelter. They went to Westminster Bridge to drown
themselves in the Thames. They got into a boat, talked together for
some time, the prisoner standing with his foot on the edge of the boat,
and the woman leaning upon him. The prisoner then found himself
in the water ; but whether by actually throwing himself in, or by
accident, did not appear. He struggled to get back into the boat again,
and then found that the woman was gone ; he then endeavoured to save
her, but could not get to her, and she was drowned. In his statement
before the magistrate he said that he intended to drown himself, but
dissuaded the woman from following his example. Best, J., told the jury,
that if they believed the prisoner only intended to drown himself, and
not that the woman should die with him, they should acquit the prisoner ;
but that if both went to the water for the purpose of drowning themselves
together, each encouraged the other in the commission of a felonious act,
and the survivor, was guilty of murder. He also told the jury, that

(m) 1 Hawk. v;. 27, «. 6.. Kcilw. 136: (r) Anon. [1604] Moore {K.B.) 75i; 72

72 E. R. 307. B. R. 884. The report begins, ' en home et

(n) 1 Hale, 413. se feme ayant longe temps vive incontinent

(o) 1 Hawk. c. 27, s. 4. ensemble,' and states that a special verdict

(p) 3 Co. Inst. 54. Dalt. c. 44. was found, but does not state the decision.

(q) Hale (1 P. C. 413) considers that B. In former editions a doubt was expressed

is not guilty at all of the death of A., not whether the two were husband and wife,

even se defendendo, as he did not strike, based on a mistranslation of the word

only held up the knife ; and that A. is not ' incontinent.'

felo se de, but that it is hoinicide by mis- (s) The report in Moore does not state

adventure. In 1 Hawk. o. 27, s. 5, it any acquittal. The rest of this passage is

seems to be considered that B. should be taken from the statement of the case in R.

adjudged to have killed A. se defendendo. v. Alison, 8 C. & P. 418, Patteson, .].

662 Of Homicide. [book ix.

although the indictment charged the prisoner with throwing the deceased
into the water, yet if he were present at the time she threw herself in, and
consented to her doing it, the act of throwing was to be considered as the
act of both, and so the case was reached by the indictment. The jury
stated that they were of opinion that both the prisoner and the deceased
went to the water for the purpose of drowning themselves, and the
prisoner was convicted. And, upon a case reserved, the judges were
clear that if the deceased threw herself into the water by the encourage-
ment of the prisoner, and because she thought he had set her the example
in pursuance of their previous agreement, he was a principal in the
second degree, and was guilty of murder ; but as it was doubtful whether
the deceased did not fall in by accident, it was not murder in either of
them, and the prisoner was recommended for a pardon [t). So where
upon an indictment for the murder of a woman, it appeared that the
prisoner and the deceased, who passed as husband and wife, being in
very great distress, both agreed to take poison, and each took a quantity of
laudanum, in the presence of the other, and both lay down on the same bed
together, wishing to die in each other's arms, and the woman died, but the
prisoner recovered ; Patteson, J., told the jury that, ' supposing the parties
in this case mutually agreed to commit suicide, and one only accomplished
that object, the survivor will be guilty of murder in point of law ' (u).

A person could not formerly be tried as an accessory before the fact,
for inciting another to commit felo de se, if that person committed felo
de se (v). But 24 & 25 Vict. c. 94, s. 1 (w), removes this difficulty, as it
abolishes for practical purposes the distinction between principals in
the first and second degree and accessories (x).

An attempt to commit felo de se is not an attempt to commit murder
within 24 & 25 Vict. c. 100, s. 15 {post, p. 841), but is a misdemeanor at
common law («/). The question for the jury is whether the defendant
had a mind capable of contemplating the act, and whether in fact he
did intend to take his own life, and drunkenness, while in this as in other
cases no excuse, is a material factor to determine whether the defendant
really meant to kill himself (z).

Sect. III.— The Party Killing, and the Party Killed.

The Party Killing. — The person committing a crime must be a
free agent, and not subject to actual force at the time the act is done.
Thus if A. by force takes the arm of B., in which is a weapon, and
therewith kills C, A. is guilty of murder, but B. is not. But the use of
moral force is no legal excuse, e.g. by threats of duress or imprisonment to B. ,
or even assault to the peril of B.'s life, in order to compel him to kill C. (a).
If A. procures B., an idiot or lunatic, to kill C, A. is guilty of the murder

(0 R. V. Dyson, R. & R. 523. {x) R. v. Jessop, 16 Cox, 207, Field J

(w) R. V. Alison, 8 0. & P. 418, Patteson, (y) K. ,;. Burgess, 32 L. J. M. C 55

J. a R. <,. Jessop, 16 Cox, 204, Field. J. (C. C. R.). Fide onte, p. 140. It is punish-

A''l^*?r«°,°?'T,^'-i;^i?^'''^''^Hy'"^;.^- ^^'« ^y 2"« ^°d (or) imprisonment
V. Abbott, 67 J. P. 151, Kennedy, J. R. v. (without hard labour) {ante, p. 249), and is
Decnng,Lmcoln Assizes, November 2, 1907. triable at quarter sessions

T !?] • \ "■ ^Tf'J ^°°L ^^^- 5- "■ '") ^- "■'• '^°°^y' 6 Cox, 463. Wightman, J.

Leddington, 9 C & P. 79, Alderson, B. («) 1 Hale, 434. Dalt. o. U5. 1 East,

(w) Ante, p. 130. p.C. 225, 294.

CHAP. I.] The Party Killing and the Party Killed. 663

as principal, and B, is merely an instrument (6). So if A. lays a trap or
pitfall for B., whereby B. is killed, A, is guilty of murder, the trap or
pitfall being only the instrument of death (p).

If a person takes poison himself, not knowing it to be poison at the
persuasion of another who knows it is poison, the latter is a principal in
the first degree in murder though not present at the taking {d).

A girl of thirteen was indicted for the murder of an infant ten weeks
old. It was argued that it was not proved that the girl had capacity
to commit the crime, or had acted with deliberate malice. Pollock,
C. B., said, ' The crimes of murder and manslaughter are, in some in-
stances, very diflS.cult of distinction. The distinction which seems most
reasonable consists in the consciousness that the act done was one which
would be likely to cause death. No one could commit murder without
that consciousness. The jury must be satisfied before they could find the
prisoner guilty [of murder] that she was conscious, and that her act was
deliberate. They must be satisfied that she had arrived at that maturity
of intellect which was a necessary condition of the crime charged ' (e).

The Party Killed. — Murder may be committed upon any person
within the King's peace. Therefore, to kill an alien enemy within
the realm except in the actual exercise of war (/), is as much murder as
to kill a born Englishman (gr).

An infant in its mother's womb, not being in rerum nafura, is not con-
sidered as a person who can be killed within the description of murder ; and
if a woman being quick or great with child, takes any potion to cause an
abortion, or if another gives her any such potion, or if a person strikes her,
whereby the child within her is killed, it is not murder or manslaughter (h),
but is punishable under 24 & 25 Vict, c. 100, s. 58, post, p. 829 (i).

Where a child, born alive, afterwards dies by reason of potions or
bruises received in the womb, those who administered the potion or
caused the bruise seem to be guilty of murder (^'). On an indictment
for manslaughter it appeared that the prisoner, who practised midwifery,
was called in to attend a woman in labour, and when the head of the
child became visible, the prisoner, being grossly ignorant of the art which
he professed, and unable to deliver the woman with safety to herself
and the child (as might have been done by a person of ordinary skill),
broke and compressed the skuU of the infant, and thereby occasioned
its death immediately after it was born. It was argued that the child
being en ventre sa mere at the time the wound was given, the prisoner

(6) 1 East, P. C. 228. 1 Hawk, c, 31, {g) 4 Bl.lCom. 198. To kill one attaint

s. 7. Ante, p. 104. in a prcemunire was held not homicide,

(d) 1 Hale, 431. Vaux's case, 4 Co. c. 1, declared it to" be unlawful.
Rep. 44 6 ; 76 E. R. 992. Mr. Greaves has (h) 1 Hale, 433. "

a note ' provided that the party taking it (»') 3 Co. Inst. 50. 1 Hawk. c. 31, s. 16.

knew not that it was poison.' The indict- 4 Bl. Com. 198. 1 East, P.C. 227. Contra,

ment in Vaux has nesciens, dec. Where the 1 Hale, 433, and Staundf. 21 ; but the

party knew that the thing taken was poison reason on which the opinions of tho two

and voluntarily took it on the persuasion of last writers seem to be founded, namely,

another, the latter would in such case be the difficulty of ascertaining the fact cannot

at the trial an accessory before the fact. be considered as satisfactory, unless it be

Fide areie, p. 116. supposed that such fact can never be

(e) R. V. Vamplew, 3 P. & E, 520, glearly established. See Exod. u. xxi. v. 22,
{f\\ Hale, 433. 23.

664 Of Homicide. [book ix.

could not be guilty of manslaughter; but, upon a case reserved, a
conviction of manslaughter was held right (;).

Upon an indictment against a woman for the murder of her child,

Maule, J., told the jury that if a person intending to procure abortion does

an act which causes a child to be born alive so much earlier than the

natural time that it is born in a state much less capable of living, and

afterwards dies in consequence of its exposure to the external world, the

person who by her misconduct so brings the child into the world, and puts

it thereby into a situation in which it cannot live, is guilty of murder {k).

To be the subject of murder, a child must be actually born. On an

indictment against a mother for the murder of her child, Littledale, J., told

the jury, ' the being born must mean that the whole body is brought into

the world, and it is not sufficient that the child respires in the progress

of the birth ' {I). Upon an indictment containing a count for murder by

stabbing, and a count charging that before the child was completely

born the prisoner stabbed it with a fork, and that it was born, and then

died of the stab, it was proved that a puncture was found on the child's

skull, but when that injury was inflicted did not appear, and some

questions were asked as to whether the child had breathed. Parke, J.,

said, ' The child might breathe before it was born ; but its having breathed

is not sufficiently life to make the killing of the child murder ; there must

have been an independent circulation in the child, or the child cannot

be considered as alive for this purpose (m).

One count charged that the prisoner, being pregnant with a female
child, ' did bring forth the same alive,' and then charged the murder of
the child by choking it with a handkerchief ; and another count charged
the murder in the same way of a certain illegitimate child, ' then lately
before born of the body ' of M. T. There was strong evidence to prove
that the child had been wholly produced alive from the prisoner's body,
and that she had strangled it ; but it was also clearly proved by the
surgeon, who examined the body of the child, that it must have been
strangled before it had been separated from the mother by the severance
of the umbilical cord, and the surgeon further stated that a child has,
after breathing fully, an independent circulation of its own, even while
still attached to the mother by the umbihcal cord, and that in his judg-
ment the child in question had breathed fully after it had been wholly
produced, and had therefore an independent circulation of its own,
before and at the time it was strangled, and was then in a state to carry
on a separate existence. Erskine, J., directed the jury, that if they were
satisfied that the child had been wholly produced from the body of the
prisoner alive, and that the prisoner wilfully strangled the child after it

(j) R. t;. Senior, 1 Mood. 346 ; 1 Lewin, (I) R. v. Poulton, 5 C. & P. 329.

183 n. See R. v. Brown, 62 J. P. 521. (m) R. v. Enook, 5 C. & P. 539. R. v.

Ihe murder of bastard children waa Wright, 9 C. & P. 754 Gui-nev B The

Bpeoially punished by 21 Jac. I. c. 27, true test of separate existence in the theory

which, with an Irish Act on the same sub- of the law (whatever it may be in medical

jeot was repealed in 1813 (43 Geo. Ill, science) is the answer to'^the question,

c. 58). Concealment of birth is now pun- ' whether the child is carrying on its being

ished under 24 & 25 Vict. c. 100, «. 60. without the help of the mother's eircula

post v- 116. tion.' R. «. Pritchard, [1901] 17 T. L. R.

(k) R. V. West, 2 0. & K. 784 ; 2 Cox, 310, Wright, J. R. .. Lod, 20 Cox. 690,

S^'O- Channell, J.

CHAP. I.] Of the Means of Killing, or Causing Death. 665

had been so produced and while it was alive, and while it had, according
to the evidence of the surgeon, an independent circulation of its own,
he was of opinion that the charge in the said counts was made out,
although the child, at the time it was so strangled, still remained attached
to the mother by the navel-string. Upon a case reserved, a conviction
of murder was held right (w). But if a child is actually wholly produced
alive it is not necessary that it should have breathed to make it the subject
of murder (o). By a bill introduced in the session of 1909 it is proposed
to make it felony to destroy an infant during birth under circumstances
which would have made the act murder if the child were fully born (p).

Sect. IV. — Of the Means oe Killing ; and oe Causing Death by
Malicious and Intentional Neglect of Duty (q).

The killing may be effected by poisoning (r), striking, starving,
drowning, and a thousand other forms of death, by which human nature
may be overcome (s). It has been generally considered that there must
be some actual corf oral damage to the party ; and that where a person,
either by working upon the fancy of another, or by harsh and unkind
usage, puts him into such passion of grief or fear that he dies suddenly,
or contracts some disease which causes his death, such killing is not
murder {t). But on principle there seems no reason for holding that
deliberate frightening to death is not at least manslaughter (m), and if a
man does an act, the probable consequence of which may be, and even-
tually is, death, such killing may be murder ; although no blow is struck
by himself, and no killing may have been primarily intended {v) : as
where a person carried his sick father, against his will, in a severe season,
from one town to another, by reason whereof he died (w) ; or where a
harlot being delivered of a child, left it covered only with leaves in an
orchard, where it was killed by a kite (x) ; or where a child was placed in
a hogsty, where it was eaten (y). In these cases, and also where a child
was shifted by parish officers from parish to parish, till it died from want
of care and sustenance, it was considered that the acts so done, wilfully
and deliberately, were evidence of malice aforethought (z).

(n) E. V. Trilloe, 2 Mood. 260. R. v. p. 588. In B. v. Towers, 12 Cox, 530, an

Crutohley, 7 C. & P. 814. R. v. Reeves, indictment for manslaugliter of an infant,

9 C. & P. 25. R. V. Sellis, 7 C. & P. 850, it appeared that the prisoner had assaulted

where, per Coltman, J., the fact of the a woman carrying the infant, and had so

child having breathed is not a decisive frightened the infant that it died in about

proof that it was bom alive : it may have six weeks. Denman, J., held that frighten-

breathed, and yet died before birth. R. v. ing a ohUd to death would be manslaughter,

Handley, 13 Cox, 79. but apparently considered that this would

(o) R. V. Brain, 6 C. & P. 349. not be so as to an adult. He left it to

Ip) Vide post, p. 829. the jury to say whether the assault on

(q) For oases of manslaughter by neglect the woman was the direct cause of the

of duty, see post, 789 et seq. death of the infant. The prisoner was

(r) See 11 Co. Rep. 32 a. Kel. (J) 32, acquitted. See R. v. Evans, post, p. 666n.
125 ; Post. 68, 69. 1 East, P. C. 225, 251. {v) 4 Bl. Com. 197.

1 Hale, 455. Barr. Obs. on Stat. 524. (w) 1 Hawk. c. 31, o. 5. 1 Hale, 431,

(s) 4B1 Cora. 196. 1 Hale, 432. 1 Hawk. 432.
0. 31, s. 4. Moriendi milU figwrce. (x) 1 Hale, 431. 1 Hawk. c. 31, s. 6.

(;) 1 Hale, 429. 1 East, P. C. 225. R. (y) i East, P. C. 226.

V. Murton, 3 F. & F. 492, Byles, J. (2) Palm. 545.

(«) See Mayne, Ind. Or. L. (ed. 1896)

666 Of Homicide. [book ix.

In E. V. Evans {a) the indictment charged that the prisoner killed his
wife (1) by beating ; (2) by throwing her out of the window ; and (3 and 4)
that he beat her and threatened to throw her out of the window and to
murder her ; and that by such threats she was so terrified that, through
fear of his putting his threats into execution, she threw herself out of the
window, and of the beating and the bruises received by the fall died.
There was strong evidence that the death of the wife was occasioned by
the blows she received before her fall : but Heath, Gibbs, and Bayley, JJ„
were of opinion that if her death was occasioned partly by the blows and
partly by the fall, yet if she was constrained by her husband's threats of
further violence, and from a well-grounded apprehension of his doing such
further violence as would endanger her life, he was answerable for the
consequences of the fall, as much as if he had thrown her out of the
window himself. The prisoner however was acquitted ; the jury being
of opinion that the deceased threw herself out of the window from her
own intemperance, and not under the influence of the threats (6).

In B. V. Curley (bh), the prisoner and the deceased woman were in
a small flat together ; quarrelling was heard to take place, and the
deceased was heard to call for help from the window of the back room.
She fell out of the window and was killed : Philhmore, J., directed the
jury {inter alia) : ' If fearing or reasonably fearing violence or further
violence from this man she went to the window to call for assistance
... if she without any intention of jumping out overbalanced and fell
then the man would be responsible, but that would be manslaughter.
A conviction on this direction was affirmed on appeal.

Upon a trial for manslaughter it appeared that the prisoner and the
deceased had some dispute, and the deceased's boat being alongside the
schooner in which the prisoner was, the prisoner pushed it with his foot,
and the deceased stretched out over the bow of the boat to lay hold of a
barge, to prevent the boat drifting away, and losing his balance fell

(a) Old Bailey, 1812. MS. Bayley, J. indictment for causing a bodily injury dan-
See Steph. Dig. Cr. Law (6th ed.), art. 241. gerous to life by casting the prosecutrix
Where an indictment for manslaughter out of a window upon the ground, she
alleged that the deceased was riding on stated that .she fell out of the window aoci-
horseback, and that the prisoner assaulted dentally ; that the prisoner beat her with
and struck him with a stick, and that the his fists, and was about to inflict other
deceased, from a well-grounded apprehen- injuries upon her, when she went to the
sion of a further attack, which would have window to call for assistance, and fell out
endangered his life, spurred his horse, of it on to the ground. In opening the
whereby it became frightened, and threw case, it was stated that the evidence would
the deceased, &c., and it was proved that be conflicting, whether the prosecutrix was
the prisoner struck the deceased with a thrown or jumped out of the window, but
small stick, and that he rode away, the that it would be immaterial, for if the
prisoner riding after him, and on the prisoner, by his violence, compelled her to
deceased spurring his horse it winced and throw herself out, he would be guiltv.
threw him : it was held, on the authority Alderson, B., said, ' I do not think it will
of the above case, that the case was be sufficient to prove that she jumped
proved. R. v. Hickman, 5 C. & P. 151, from the window to escape from his vio-
Park, J. See R. c. Grimes, 15 N. S. W. lence. You must go further than that,
Law, 209, m which the prisoners were held and satisfy the jury that he intended at
to have been rightly convicted of murder- the time to make her jump out.' See
ing a man whom they brutally assaulted the cases in note (a).
in a railway carriage, who, thinking Ms life (66) Cent. Cr. Ct. 4 March, 1909 • 2 Cr.
m danger, jumped out and was killed. App. R. 109. The direction is taken from

(6) In R. V. Donovan, 4 Cox, 399, on an the shorthand notes of the trial.

CHAP. I.] Causing Death hy Neglect of Duty. 667

overboard, and was drowned. Park, J,, after consulting Patteson, J.,
said, that they were of opinion that, if the case had rested on this evidence,
it would not have amounted to manslaughter (c). Upon an indictment
for murder by drowning, by the deceased slipping into the water in
endeavouring to escape from an assault made with intent to murder or
rob, it was proved that the body was found in the river, and it bore marks
of violence, but not sufficient to occasion death, which appeared to have
been caused by drowning, and there were marks of a struggle on the
banks of the river. Erskine, J., told the jury that a man might throw
himself into a river under such circumstances as rendered it not a voluntary
act, by reason of force applied either to the body or the mind; and it then
became the guilty act of him who compelled the deceased to take the
step, but the apprehension must be of immediate violence, and well
grounded from the circumstances by which the deceased was surrounded ;
and that the jury must be satisfied not that there was no other way of
escape, but that it was such a step as a reasonable man might take (d).
By Neglect of Duty. — The prisoner had delivered herself of a child
by night upon a road, and had left it on the side of the road without any
clothing or covering to protect it from the inclemency of the weather,
where it died from the cold, and she had wholly concealed the birth of the
child till she was apprehended. Coltman, J., told the jury, ' If a party
so conduct himself with regard to a human being, which is helpless and
unable to provide for itself, as must necessarily lead to its death, the
crime amounts to murder. But if the circumstances are not such that
he must have been aware that the result would be death, the crime would
be manslaughter, provided the death were caused by an unlawful act,
but not such as to imply a malicious mind. There have been cases where
it has been held that persons leaving a child exposed, and without any
assistance, and under circumstances where no assistance was likely to be
rendered, were guilty of murder. It wiU be for you to consider whether
the prisoner left the child in such a situation that to all reasonable
apprehension she must have been aware that the child must die, or
whether there were circumstances that would raise a reasonable expecta-
tion that the child would be found by some one else, and preserved ;
because then it would only be the crime of manslaughter. If a person
were to leave a child at the door of a gentleman, the probability would
be so great that it would be found, that it would be too much to say that
it was murder, if it died ; if, on the other hand, a child were left in an
unfrequented place, what inference could be drawn but that the party left
it there in order that it might die ? This is a sort of intermediate case,
and therefore it is for you to say whether the prisoner had reasonable
ground for believing that the child would be found and preserved (e).

and Patteson, JJ. It afterwards appeared posed to the cold air, by means of which

that the prisoner was not the man who exposure the child became frozen and died,

pushed the boat away. B. v. Waters, 1 Den. 356. The point in

{d) R. V. Pitts, C. & M. 284. this case was, that it was consistent with

C. S. 6. See R. v. Stookdale, 2 Lew. 220. child might be capable of taking care of

In one case a prisoner was convicted of itself ; but it was held that if she had been

manslaughter for assaulting her infant sufficiently old, or strong enough so to do,

female child, and throwing it upon a heap the death could not have arisen from the

668 Of Homicide. [book ix.

A man and his wife were indicted for the murder of a boy who was
bound as a parish apprentice to the man. Both the prisoners had used
the apprentice in a most cruel and barbarous manner, and had not
provided him with sufficient food and nourishment : but the surgeon
who opened the body deposed that in his judgment the boy died from
debility, and for want of proper food and nourishment, and not from the
wounds, &c., which he had received. Lawrence, J., considered the case
defective as to the wife, as it was not her duty to provide the apprentice
with sufficient food and nourishment, she being the servant'of her husband,
and so directed the jury, who acquitted her ; but the husband was found
guilty and executed {/).

The prisoner, upon his apprentice, who had been sent to Bridewell
for misbehaviour, returning to him in a lousy and distempered condition,
did not take such care of him as his condition required, and which he
might have done ; the apprentice not having been suffered to lie in a
bed, on account of the vermin, but being made to lie on the boards for
some time without covering, and without common medical care. The
medical witnesses were of opinion that the boy's death was most
probably occasioned by his ill-treatment in Bridewell, and the want of
care when he went home ; and inclined to think, that if he had been
properly treated when he came home, he might have recovered. But,
though some harsh expressions were proved to have been spoken by the
prisoner to the boy, yet there was no evidence of any personal violence
having being used by the prisoner ; and it was proved that the apprentice
had had sufficient sustenance ; and the prisoner had a general good
character for treating his apprentices with humanity, and had made
application to get this boy into the hospital. Under these circumstances,
the Recorder left it to the jury to consider whether the death of the boy
was occasioned by the ill-treatment he received from his master, after
returning from Bridewell, and whether that ill-treatment amounted to
evidence of malice, in which case they were to find him guilty of murder.
At the same time they were told, with the concurrence of Gould, J., and
Hotham, B., that if they thought otherwise, yet, as it appeared that the
prisoner's conduct towards his apprentice was highly blamable and

act of the prisoner, and therefore the defect the series of cruel usage the boy had re-
was cured by the verdict. It is a novel ceived, and in which the wife had been as
doctrine in criminal cases that a defective active as her husband, might not have so
indictment is cured by verdict. Hale says far broken his constitution as to promote
(2 P. C. 193), ' None of the statutes of the debility, and co-operate along with the
jeofails extend to indictments, and there- want of proper food and nourishment to
fore tt defective indictment is not aided bring on his death, when the surgeon was
by verdict, and no authority is known for seized with a fainting fit, and, being taken
such a doctrine in other cases ' (but vide post out of court, did not recover sufBclently to
Bk. xii. c. ii.). The indictment was attend again upon the trial. The judge,
right; for it alleged the acts of the prisoner after observing that, upon the evidence, as
which caused the death, and that is all it then stood, he could not leave it to the
that it ever was necessary to do in such an jury to consider, whether the wounds, &c.,
mdictnient. C. S. G. inflicted on the boy, had contributed to
(/ ) R. u. bqmre, Stafford Lent Assizes, cause his death, said, that if any physician
1799, MS. After the surgeon had deposed or surgeon were present who had heard the
that the boy died from debility, and for trial, he might be examined as to the point
want of proper food and nourishment, and intended to be inquired into ; but no such
not from the wounds, &o., which he had person being present, he delivered his
received, the learned judge was proceeding opinion to the jury, as stated in the text,
to inquire of him whether, in his judgment,

CHAP. 1.] Causing Death hy Neglect of Duty. 669

improper, they might, under all these circumstances, find him guilty of
manslaughter ; which they accordingly did [g). And upon the question
being afterwards put to the judges, whether the verdict were well found,
they all agreed that the prisoner should be burned in the hand and
discharged Qi).

On an indictment for the manslaughter of an apprentice by neglecting
to provide him sufficient meat and drink, &c., it appeared that the
deceased was bound to the prisoner by indenture, by which he covenanted
to find him clothes and victuals ; and, according to the evidence of
some medical men, that his death was produced by uncleanhness and
want of food. Patteson, J., told the jury that, ' by the general law the
master was not bound to provide medical advice for his servant [i) ;
yet that the case was different with respect to an apprentice, and that a
master was bound during the illness of his apprentice to provide him with
proper medicines ; and that if they thought that the death of the deceased
was occasioned, not by the want of food, &c., but by want of medicines,
then, in the absence of any charge to that effect in the indictment,
the prisoner would be entitled to be acquitted ' {j). An indictment for
manslaughter alleged in one count that the deceased was the apprentice
of the prisoner, and that it was his duty to provide sufficient food
for her as such apprentice, and that he neglected to do so, &c., by
means of which she died ; and (in another count) that the deceased was
the servant of the prisoner, and that it was his duty to provide her with
food, &c. . An invalid indenture of apprenticeship was put in, and it
appeared that the deceased had always been treated as an apprentice by
the prisoner, and had performed such duties as an apprentice would have
performed, but the prisoner being a farmer these duties were the same as
those performed by ordinary farmer's servants. It was objected that the
first count was not proved, as the indenture was invaUd ; and that the
relation of master and servant never existed, for an invahd contract of
apprenticeship could not be converted into a hiring and service ; that the
foundation of this indictment was that the prisoner was legally bound
to provide maintenance for the deceased, and here it was clear he could
neither have been compelled to support her as an apprentice or as
a servant. Patteson, J., held, that the prisoner, having treated the
deceased as his servant, could not turn round and say she was not
his servant at all {h). Where the first count stated that the deceased

(g) R. V. Self, 0. B. 1776, MS., Gould, certainly cannot be drawn from this state-

J. 1 East, P. C. 226. ment of the case. The same opinion, how-

(h) Upon this case, East (1 P. C. 227 n) ever, is stated in the Old- Bailey Sessions

says : ' I have been the more particular in Papers, to have beenthrown out by the

stating the ground of the decision in this Recorder in Wade's case.'

case, because Gould, J.'s, note of the case, (i) See Sellen v. Norman, 4 C. & P. 80.

from whence this is taken, is evidently (j) R. v. Smith, 8 C. & P. 153. See 24

different from another report (1 Leach & 25 Vict. c. 100, s. 26 ; 38 & 39 Vict. c.

137) of the opinion of the judges in this 86, s. 6, 'post, p. 910.

case, from whence it might be collected, (h) R. v. Davies, Hereford Summer As-

that there could be no gradation of guilt in sizes, 1831, MS. C. S. G. In support of this

a matter of this sort, where a master, by decision it may be observed, that although

his Hi-conduct or negligence, had ooca- a son could not be punished for the murder

sioned or accelerated the death of his ap- of his father as for petit treason, under 25

prentice, but that he must either be found Edw. III. s. 5, c. 2, unless by a reasonable

guilty of murder or acquitted ; a conclu- construction he came under the word ser-

sion, which, whether well or ill founded, vant, yet if he were bound apprentice to his

670 Of Homicide. [BooK ix.

was the apprentice of the prisoner, and it was his duty to provide the
deceased with proper and necessary nourishment, medicine, medical
care and attention, and charged the death to be from neglect, &c. ; and
the second count^that charged the deceased ' so being such apprentice as
. aforesaid," was killed by the prisoner by over-work and beating ; and
the only evidence given to shew that the deceased was an apprentice
was that the prisoner had stated that he was his apprentice ; Patteson,
J., held that there was sufficient evidence to support the second count,
but not the first (Z).

If a mistress culpably neglects to supply proper food and lodging to
her servant, when the servant is so enfeebled in body or mind as to be
helpless and unable to take care of herself, or is so under the dominion and
restraint of the mistress as to be unable to withdraw herself from her
control ; and the death of the servant is caused or accelerated by such
neglect, the mistress is liable to be convicted of manslaughter (m).

In R. V. Saunders (w), a married woman was charged with the murder
of her illegitimate child, aged three years, by omitting to give it proper
food. The prisoner had married J. S. ; the deceased was her illegitimate
child, born before the marriage. In the judgment of medical witnesses
the death had proceeded from the want of proper food. For the prose-
cution reference was made to R. v. Squire (o), and to sect. 71 of the Poor
Law Amendment Act, 1834 (4 & 5 Will. IV. c. 76) ; and it was sub-
mitted that the mother of an illegitimate child was bound to take care of
her child, and might be guilty of murder if its death arose from neglect.
Alderson, B., said, ' The prisoner is indicted as a married woman : if her
husband supplied her with food for this child, and she wilfully neglected
to give it to the child, and thereby caused its death, it might be murder
in her (o). In these cases the wife is in the nature of the servant of the
husband : it does not at all turn upon the natural relation of mother :
to charge her you must shew that the husband supplied her with food to
give to the child, and that she wilfully neglected to give it. There is no
distinction between the case of an apprentice and that of a bastard child,
and the wife is only the servant of the husband, and, according to the
case before Lawrence, J., {p), can only be made criminally responsible
by omitting to deliver the food to the child, with which she had been

father or mother, or was maintained by receives insuflScient food, and his health is
them, or did any necessary service for injured, and death supervenes, the master
them, though he did not receive wages, he is not criminally responsible.' The facts of
might have been indicted by the desorip- this case would have supported an indict-
tion of servant. 1 Hawk. c. 32, s. 2. ment on 24 & 25 Vict. c. 100, s. 26, post,
1 East, P. C. 336 ; and a near relation, as a p. 910. It seems very well worthy of con-
sister, might be a servant within the sideration whether, where death results
statute, if she acted as such. R. v. Ed- from the commission of an offence within
wards, Stafford Assizes. MS. coram Law- that section, the case is not one of man-
rence, J. C. S. G. slaughter, on the principle laid down in R.

{/) R. ,;. Crumpton, C. & M. 597. v. Senior [1899], 1 Q.B. 293, posi, p. 674.

(m) R. V. Smith, 34 L. J. M. C. 153, Erie, (») 7 C. & P. 277. In a note to this case

C.J., said : ' It IS undisputed law that if a it is suggested that a statute, 18 Bliz. o. 3,

person who has the custody of another who s. 2 (now repealed), would hardly have been

is helpless, leaves that other with insuf- needed if a mother were liable at common

ficient food, and so causes his death, he is law for the entire maintenance of her child,
criminally responsible. But it is also clear (o) Ante, p. 668.

that if a person having the exercise of free (p) In R. v. Squire, ante, p. 668.

will, chooses to stay in a place where he

Chap, l.] Causing Death by Neglect of Duty. 671

supplied by her husband {q). The omission to provide food is the omission
of the husband, and the crime of the wife can only be the omitting to
deliver the food to the child after the husband has provided it ' (r).

Under the Poor Law Amendment Act, 1834 (4 & 5 Will. IV. c. 76),
s. 41, the mother of an illegitimate child, so long as she is unmarried or a
widow, is bound to maintain this child as part of her family until the child
is 16 ; and by sect. 57, a man who marries a woman who has legitimate
or illegitimate children is liable to maintain them as part of his family
till they are 16. So that the marriage, while it continues, suspends
the liability of the mother (s). But the marriage does not extinguish
affiliation orders made on the putative father of any such child (t).

The obligation to maintain legitimate children is recognised at common
law and enforceable by statute (u).

In R. V. Bubb (v), an indictment for murder alleged that M. H., an infant
of tender age, was a daughter of E. H., and was living with R. H. and
E. B., and under their care and control, and unable to provide for or take
care of herself, and that it was the duty of the prisoners to provide for and
administer to M. H. sufficient food for the support of her body, and that
the prisoners feloniously, &c., did refuse and neglect to give and administer
to M. H. sufficient food for the support of her body ; whereby she became
mortally sick and died (v). B. was the sister of H.'s deceased wife, and
on her death had gone to live with H., and became the manager of his
household. H. was absent from home except from Saturday night until
Monday morning, but always provided ample food for the whole family.
H.'s children were healthy till B. undertook their management, but she

(?) In R. V. Bubb, 4 Cox, 457, Willlama 1718 (5 Geo. I. c. 8). Vagrancy Act, 1824

J., considered this statement too wide, aa (5 Geo, IV. c. 83), s. 3. 45 & 46 Vict. o. 75,

it was not limited to oases where death or s. 21. There may be cases where a wife

serious bodily injury was contemplated. may be Uable to maintain her children

See 8 Edw. VII. c. 67, s. 12, post, p. 913. during her husband's lifetime, as where the

(r) The decision was given upon the husband has deserted her, or she has a

opening statement of counsel. It did not separate maintainance (see Christian's note

appear whether the wife was living with to 1 Bl. Com. 448), and it may be worthy of

the husband, nor whether he had the consideration whether where the husband

means of maintaining the child. In B. v. is incapable of work, but she is capable of

Forsyth' (Chester Assizes, July 25, 1899 : maintaining her children, she is not legally

Archb. Cr. PI. 23rd ed. 784), Kennedy, J., bound so to do ; and as the overseers of

following this case and R. v. Squire, ruled every parish are bound by law to provide

that where husband and wife are living necessary support in cases of emergency,

together, the legal obligation to maintain it may well be doubted whether oases may

is on the husband, and that the wife cannot not occur where the wife would be legally

be convicted of manslaughter by neglect to bound to apply for relief to the parish offi-

supply food or medical aid. As to the oers. Suppose a husband were ill in bed, but

liability of a husband living apart from his the wife were well, and the children starv-

wife, see R. v. Connor [1908], 1 K.B. 26. ing'for want of food, could it be fairly con-

(C. C. R.) tended that she was under no legal obliga-

(s) This seems to be the ratio decidendi tion to apply for relief for them, and that

in B. V. Saunders, ante, p. 670. See now if one of them died for want of food, she

45 & 46 Vict. c. 75, s. 21. was not criminally responsible ? See

(t) Sotheran v. Scott, 6 Q.B.D. 518. Urmston v. Newcomen, 4 A. & E. 899, and

Hardy v. Atherton, 7 Q.B.D. 264 ; which R. v. Mabbett, post, p. 673, C. S. G.
override Lang v. Spioer, 1 M. & W. 129. (u) 4 Cox, 457. The grand jury re-

As to the obligation at common law to turned a bill for murder against E. B., and

maintain bastard children, see 1 Bl. Com. for manslaughter against R. H., and a bill

446, 448. Harris v. Jeffel, 1 Ld. Raym. 68 ; for manslaughter in the same form, mutatis

Conib., 356. mutandis, as the bill for murder was then

(u) Poor Law Act, 1601 (43 Eliz. c. 2), preferred against the latter, and B. was

s. 6. Poor Relief (Deserted Children) Act, tried first.

672 Of Homicide. LBOOK ix.

systematically neglected them, especially the deceased, and, notwith-
standing the remonstrances of the neighbours, persisted in withholding
sufficient food, for want of which the child gradually wasted away, and
died of actual starvation. Williams, J., told the jury that ' the indict-
ment alleges, first, a duty on the part of the prisoner to supply the necess-
aries of life to the child ; it alleges, secondly, a malicious neglect or
omission to perform that duty ; and it alleges, thirdly, that the omission
or neglect caused the death of the chUd. Now, first, with respect to the
proposition that it was the duty of the prisoner to provide food necessary
to sustain the life of the child. It is quite clear that the circumstance
of the prisoner being aunt of the child, or being resident in the same house
with the child, was not sufficient to cast upon her the duty of providing
food for it. But if the prisoner undertook the charge of attending to
the child, and of taking that care of it which its tender age required, a
duty then arose to perform those duties properly ; and if the prisoner,
being in the capacity, as it were, of a servant or nurse, and having the
charge of attending and taking care of the child, was furnished with the
means of doing so properly, then the duty arose, which is charged in this
indictment, of giving it sufficient food, and if the prisoner neglected to
perform that duty, beyond all question she is criminally responsible.
It remains for me to explain to what extent she is responsible. If the
omission or neglect to perform the duty was malicious, then the indictment
would be supported, and the crime of murder would be made out against
the prisoner ; but if the omission or neglect were simply culpable, but
not arising from a malicious motive on the part of the prisoner, then it
would be your duty to find her guilty of manslaughter only. And here
it becomes necessary to explain what is meant by the expression malicious,
which is thus used. If the omission to supply necessary food was accom-
panied with an intention to cause the death of the child, or to cause some
serious bodily harm to it, then it would be malicious in the-sense imputed
to it by this indictment, and in a case of this kind it is difficult, if not
impossible, to understand how a person who contemplated doing serious
bodily injury to the child by the deprivation of food, could have meditated
anything else than causing its death. You will, therefore, probably
consider that the question resolves itself into this : Did the prisoner
contemplate, by the course she pursued, the death of the child ? If she
did, and death was caused by the course she pursued, then she is guilty
of murder. But if you are not satisfied that she contemplated the death
of the child, then, although guilty of a culpable neglect of duty, it would
amount only to the crime of manslaughter. If, on the other hand, you
should think either that she did not undertake the duty of supplying
the child with proper food, or that she did not culpably neglect that duty,
then you will acquit her' (w).

On the trial of H. for the manslaughter of the same child, in addition
to the facts proved on the trial of B., it was proved that when H. was at
(w) ' The indictment also alleged the was fully discussed between WiUiams, J.,
duty to provide clothing and the neglect Campbell, C.J., and Mr. Greaves, on a re-
thereof ; but as the child is alleged to have view of the previous cases.' C. S. G. See
died of " actual starvation " all relating to R. v. Conde, 10 Cox, 547. R. v Macdonald
the clothing has been omitted. This and [1904], Queensland St. Rep. 151. R v.
the next case underwent the moat careful Brooks [1902J, 5 Canada Cr. Cas. 372.
consideration, and the law on the subject

CHAP. I.] Causing Death by Neglect of Duty. 673

home B. treated the children better than on other occasions ; and that
he had uniformly behaved kindly to them, and especially to the deceased.
Wilhams, J., told the jury that ' this case differs from the last in this
very essential particular, that here there is a duty directly cast upon the
prisoner to provide sufficient food for the child if he has sufficient means
for doing so, and inasmuch as it is proved that the prisoner had such
means, there can be no doubt but that the law threw upon him the duty
of preserving the child's life by providing it with proper food. But the
peculiarity of the case is this, that inasmuch as we must take it that B.
was guilty, she could not have been so, unless the prisoner had provided
her with sufficient means for feeding the child, and it must be taken as
an admitted fact in this case that the prisoner did take such steps as, but
for B.'s misconduct, would have preserved the child's life. Then the
question is how is the charge shaped against the prisoner ? If B. neg-
lected her duty by depriving the child of food for any purpose, and the
prisoner was conscious of it, and nevertheless chose to let her persevere in
that course, he thus became himself an instrument, as it were, of depriving
the child of sufficient food, and he would be guilty upon this indictment.
If, therefore, you think he was conscious that B. deprived the child
of food to such an extent as to render it dangerous to the child's
life, and, being so conscious, instead of preventing her from continuing in
this course, he allowed her to do so, and was culpably negligent of the
obvious duty cast upon him, then he is guilty of manslaughter, because
then substantially he would have neglected to provide the child with
proper food ' {x).

Where parent, child, and servant reside in the same house, the duty
of the parent is to provide food for the child, and the duty of the servant
is to supply the food, when so provided by the parent, to the child, an
indictment therefore charging both with the same duty cannot be sup-
ported ; but there ought to be separate indictments charging each in
respect of the duty incumbent on each (y).

Upon an indictment against husband and wife for the murder of their
infant child, it appeared that the child's death was produced by English
cholera, and that insufficient food had a tendency to produce that com-
plaint ; the husband was in work, but he spent the money he obtained on
himself ; and the wife did not appear to have any money or food to give
to the child. Martin, B., consulted Erie, J., and they were of opinion
that it was the.duty of all persons having children, when they themselves
cannot support them, to endeavour to obtain the means of getting them
support, and if they wilfully abstain from going to the union, where by
law they have a right to support, and their children die in consequence,
they are criminally responsible for it : but there ought to be a distinct
abstaining to go for several days ; and if a married woman neglects for
four or five days to go to the union for the purpose of getting support for
a child, she knowing that such neglect would be hkely to produce the
death of the child, it is manslaughter {z).

(x) R. V, Hook, 4 Cox, 457. in the present form would not suf&ce.'

(y) ' This was agreed between WilUams, 0. S. G. See 8 Edw. VII. o. 67, s. 12 (4),

J., and Mr. Greaves in K. v. Bubb, ante, post, p. 912.

p.671,onanindictmentbeforel4&15Viot. (s) E. v. Mabbett, 5 Cox, 339. See the

c. 100. But qu., whether one indictment latter part of note («), ante, p. 671.

VOL. I. 2 X

674 Of Homicide. [book ix.

By sect. 12 (1) of the Children Act, 1908 (8 Edw. VII. c. 67), that
section is to apply in the case of a parent, who, being without means to
maintain the child, fails to provide for its maintenance under the Poor
Law, in like manner as if the parent had otherwise neglected the child (a).
Where a woman took charge of the illegitimate child of her dead
daughter, and the child died for want of proper nourishment, Brett, J.,
told the jury that mere negligence would not be sufficient to convict
the prisoner. There must be negligence so great that they must be of
opinion that the prisoner was reckless whether the child died or not.
Her omission to send the child to the workhouse would not be sufficient.
The question was whether she was wickedly careless. She might have
been very careless, and ought to have done more than she did, but the
case must be judged according to the state and condition of life of the
prisoner, and the jury must say whether she had let the child die by
wicked neghgence or not (6).

Medical Aid.— By sect. 37 of the Poor Law Amendment Act, 1868
(31 & 32 Vict. c. 122) (c), when any parent wilfuUy neglected to provide
medical aid for his child, being in his custody and under the age of fourteen
years, whereby the health of such child was seriously injured, he was
guilty of an offence punishable summarily before justices. Where from
a conscientious religious conviction that in answer to prayer God would
heal the sick, and in obedience to the tenets of a sect called the Pecuhar
People, and not from any intention to avoid the performance of his duty
to his child or to break the law, the parent of a sick child, being one of
such sect, while furnishing it with all necessary food and nourishment,
refused to call in medical aid though well able to do so, and the child in
the opinion of the jury died from not having such medical aid, it was held
manslaughter {d). But in order to convict of manslaughter, it was
necessary to prove that the neglect caused or accelerated the death and
not merely that it might have done so (e).

In E. V. Senior (/), which arose, after the repeal of sect. 37 of the Poor
Law Amendment Act, 1868, and under sect. 1 of the Prevention of Cruelty
to Children Act, 1894 (gr), the prisoner was charged with the manslaughter
of his infant child, of which he had the custody. He was one of the
Peculiar People, and objected on religious grounds to calling in medical
(a) In B. V. Connor [1908], 2 K.B. 26, a absolute duty, whatever the conscientious
wr.,^TI 'T* ''^ ^' ^^ and earning or superstitious^orof peopTe Zj be

src'iri?:?4^Ztr tS ':^f t:^ t ri^,-d''\^'' ^.-H-4-

rXiron t htbaXartto 11 a^n^ Z^ZyT^J^l^}^' ^^^^ \

money for his children wa^s wilful neglect t^ W ly b"e ^'J^^er Me^CT 'The

within s. 1 of the Prevention of Cruelty to statutP I,-.," Z.<t if ^ f 1° ' •

Children Act, 1904. See also Cole J Pen tentW^v ^^i^^Wy "?§!«<=* .' f«ans in-

T^. II ^^a^^r « ^- '-■ ^i^^'"^ s-LTisfi 1

id) R. V. Downes, 1 Q.B.D. 25 • 13 Cox v}^J vT t' ^"i"^ '^e-enacted 1904 (4
111. ThereBraniwelI.B^aid = 'TheltuS f E^dJ^^I ' ' %\'''t2^ZT:^f^
referred to has imposed a positive and 921, ^ ' ^^' '

CHAP. I.J Causing Death by Neglect of Duty. 675

aid or to the use of medicine, and he had wilfully and deliberately
abstained from providing medical aid for his child, though he knew it to be
dangerously ill, but otherwise he had done all that he could for the child.
The prisoner had the necessary means to provide medical aid, and it
would have prolonged, and probably saved, the child's life. Upon a case
reserved it was held that the prisoner had wilfully neglected the child in a
manner likely to cause injury to its health, within the meaning of sect. L
of the Prevention of Cruelty to Children Act, 1894 {gg), and having
thereby caused or accelerated its death, he was guilty of manslaughter {h).

The prisoner was tried for the murder of her daughter : the case for
the prosecution was that the prisoner, having great ill-wiU against the
deceased, had purposely neglected to procure a midwife, or other proper
person, to attend her daughter when she was taken in labour, and that
by reason thereof she died in childbirth ; she was about eighteen years of
age and unmarried. The prisoner had married a second husband, and
after the marriage the daughter had lived with them for some time,
and then went out to service, occasionally returning to live with them
when she was out of place ; at last she returned to her step-father's
house on a Tuesday, and continued there tiU the Saturday following,
when she died. It was objected that the prisoner was under no legal
obligation to procure or try to procure the attendance of a midwife.
WiUiams, J., directed the jury to consider whether it was established by
the evidence that the death was attributable to the prisoner's neglect to
use ordinary diligence in procuring the assistance of a midwife, or other
proper attendant, and if it was so established, then to consider whether
by so neglecting she intended to bring about the death of her daughter ;
and if so, the jury were to convict her of murder ; but if not, of man-
slaughter. The jury convicted her of manslaughter ; and it was held that
there was not an omission of any duty rendering the prisoner liable to be
convicted. Assuming that if she had used ordinary care she would have
procured the attendance of a midwife ; that she knew where a midwife
could be found ; and that if the midwife had been summoned she would
have attended ; her skill must have been paid for, and there was no
evidence that the prisoner had the means at her command of paying for
that skill. The midwife would probably have attended without being
paid. Yet the prisoner could not be criminally responsible for not asking
for that aid, which, perhaps, might have been given without compensa-
tion. Aid of this kind was not always required in childbirth, and
sometimes no ill consequences resulted from its absence {i).

The mere failure on the part of a woman to make proper provision
for her expected confinement, resulting in the complete birth and

[gg) Repealed, but re-enaoted 1904 ^3 down, Kennedy, J., held that it was not

Edw. VII. 0. 15, s. 1), and now embodied necessary to shew that the prisoner aotu-

in 8 Bdw. VII. c. 67, s. 12, post, p. 913. ally had money at the time she failed in

(h) Eussell, L.C. J., said he was not satis- her duty to pro-vide food and medicine, if

£ied that there was not suflScient evidence it was shewn that she had previously re-

at common law to justify a conviction. ceived money, and that under the circum-

(i) B. V. Shepherd, L. k C. 147. In R. stances she would naturally be expected to

V. Jones, 19 Cox, 678, where a woman was have some of the money still unspent at

indicted for the manslaughter of an infant the time when the child was alleged to have

she had taken to nurse for a lump sum paid been neglected.

2x2

676 -Of Homicide. [book ix.

subsequent death of a child, is not sufficient in itself to warrant a con-
viction of manslaughter.

Where on an indictment of a woman for the murder of her infant it
appeared that the infant was found dead in a bag and that the mother
had not made any preparation for its birth, she was held not guilty of
manslaughter, although she knew she was about to be delivered, and
wilfully abstained from taking the necessary precautions to preserve
the life of the child after its birth, and the child died in consequence of
that neglect (/).

In E. V. Handley (k), the prisoner was indicted for the wilful murder of
her new-born child, and Brett, J., directed the jury (1) that if the prisoner
either before or after the birth of the child had made up her mind that
the child should die, and, after it was born alive, left it to die, and it did
so in consequence, she would be guilty of murder ; or (2) that if she
made up her mind to conceal the birth, and did attempt to conceal it by
methods which would probably end in its death, and they did end in
death, she would be guilty of murder, even though she did not intend
murder ; or (3) that she would be guilty of manslaughter if she had deter-
mined that none but herself should be present at its birth, for the purpose
of temporary concealment, and had caused the death of the child by
wicked negligence after its birth.

In E. V. Izod {I), Channell, J., refused to accept the proposition that
failure on the part of a woman to make proper provision for her expected
confinement, resulting in the complete birth and subsequent death of a
child, rendered her guilty of manslaughter, and he directed the jury that
to support a verdict of manslaughter there must be some evidence of
neglect after the child had been completely born.

The prisoner was indicted for the manslaughter of her child, and it
appeared that she had been delivered of the child whilst on the seat of a
privy, and that the child had breathed. The prisoner was seventeen
years old, subject to epileptic fits, and this was her first child. Erie, J.,
told the jury, ' The question in this case is, whether there was any negli-
gence on the part of the mother in not providing for the safety of her
offspring. It is but reasonable to presume that the child dropped from
her whilst she was on the privy. Now, if you think that she had the means
and the power of procuring such assistance as might have saved the hfe
of the child, by neglecting to do so she would be clearly guilty of man-
slaughter. But it is proper that you should take into your consideration
that the prisoner is very young ; that this was her first child ; that she
was subject to epileptic fits, and that the probabiUty is that the child could
have survived but a few moments after its immersion in the soil ' (m).

Where a child is very young and not weaned, the mother is criminally
responsible if the death arose from her not suckling the child when she
was capable of doing so (n).

If a person, who stands in the place of a parent, inflicts corporal

(j) R. V. Knights, 2 F. & F. 46, Cookburn, [1) R. v. Izod, 20 Cox, 690.

C.J., and Williams, J. (m) R. ^. Middleahip, o Cox, 275.

(k) 13 Cox, 79, Brptt, J. See R. v. (n) R. „. Edwards, 8 C. & P. 6] 1, Patte-

Piitohard [1901], 17 T. L, R. 310, Wright, son, J,
J.

CHAP. 1.] Causing Death hy Neglect of Duty. 677

punishment on a child, and compels it to work for an unreasonable
number of hours, and beyond its strength, and the child dies of a disease
hastened by such ill-treatment, it will be murder if the treatment was of
Such a nature as to indicate malice ; but if such person believed that the
child was shamming illneas, and was really able to do the work required,
it will only be manslaughter, although the punishment were violent and
excessive (o).

A person is criminally responsible if, having undertaken to provide
necessaries for another, who is so aged and infirm that he is incapable of
doing so for himself, he neglects such undertaking, with the result that
death ensues ; or if having confined another he neglects to supply him
with necessaries, whereby the other dies. An indictment for murder
stated that the deceased was of great age, and was residing in the house
and under the care and control of the prisoner, and that it was his duty to
take care of and find her sufficient meat, &c., and then alleged her death
to have been caused by confining her against her will, and not providing
her with meat and other necessaries. It appeared that the deceased
was seventy-four years of age, and that upon the death of her sister, with
whom she had lived, was taken away by the prisoner, he saying she was
going home to live along with him till affairs were settled, and he would
make her happy and comfortable ; and that on another occasion the
prisoner had said that in consideration of a transaction, which he men-
tioned, he had undertaken to keep the deceased comfortable as long as she
lived. After some time the deceased was waited on by the prisoner and
his wife, and remained locked in the kitchen alone, sometimes by the
prisoner and sometimes by his wife, for hours together ; and on several
occasions had complained of being confined. In the cold weather no fire
was discernible in the kitchen, and for some time before her death the
deceased was continually locked in the kitchen, and not out of it at all.
An undertaker's man stated that, from the appearance of the body,
he thought she had died from want and starvation. A surgeon proved
that the immediate cause of death was water on the brain ; that the
appearance of all parts of the body betokened the want of proper
food and nourishment, that there was great emaciation of the
body, and that the water on the brain might have been produced
by exhaustion. Patteson, J., told the jury, ' If the prisoner was
guilty of wilful neglect, so gross and wilful that you are satisfied
he must have contemplated the death of the deceased, then he will
be guilty of murder (p) ; if, however, you think only that he was so
careless that her death was occasioned by his negligence, though he did
not contemplate it, he will be guilty of manslaughter. The cases which
have happened of this description have been generally cases of children
and servants, where the duty has been apparent. This is not such a case ;
but it will be for you to say whether from the way in which the prisoner
treated her, he had not by way of contract, in some way or other, taken
upon him the performance of that duty, which she, from age and infirmity

(o) R. V. Cheeseman, 7 C. & P. 455, injury to the health, or body of the party,

Vaughan, J., pos«, F- V69. it is murder; as Williams, J., and Mr.

ip) This position is too narrow. If the Greaves agreed in R. v. Bubb, ante, p. 671.

prisoner intends either death, or grievous C. S. G.

6^8 Of Homicide. [bookix.

was incapable of doing:' After reading the evidfence as to the contract,
the learned judge added, ' This is the evidence on which you are called
bn to infer that the prisoner undertook to provide the deceased with
necessaries ■ and though, if he broke that contract, he might not be
liable to be indicted during her life (q), yet if by his negligence her death
was occasioned, then he becomes criminally responsible ' (r).

The prisoner, a woman of full age, who had no means of her own,
lived with and was maintained by her aged aunt, and no one else lived
with them. For the last ten days of her life the deceased was quite
unable to attend to herself or to move about or do anything to procure
assistance. During this time the prisoner lived in the house at the cost
of the deceased, and took in the food supplies by the tradesmen, but
apparently did not give any to the deceased, nor did she promise for her
any nursing or medical attendance or inform any one of the condition
of the deceased, although she could easily have done so, and no one but
the prisoner had any knowledge of the condition in which her aunt was.
The prisoner was convicted of manslaughter, and upon a case reserved it
was held that it was the duty of the prisoner, under the circumstances,
to supply her aunt with sufficient food to maintain life ; and that the
death of her aunt having been accelerated by neglect of this duty, she was
properly convicted (s).

Upon an indictment for manslaughter it appeared that the prisoner
four years previously had separated from his wife, by mutual consent,
the prisoner allowing her 2s. 6d. a week, which had been in general
regularly paid, and the last payment was on the Sunday preceding her
death. On the Tuesday she was turned out of her lodgings, being at that
time suffering from diarrhoea. On the Wednesday she was in a house in
a state of great iUness, when the prisoner passed by, and was told he must
take his wife away, as she could not shelter there. The prisoner repUed,
' Turn her out ; I won't be pestered with her,' and then walked away.
The same evening, which was wet and dark, she was seen by a constable
wandering about seeking shelter. He took her to the house where the
prisoner lodged, and told him the state of his wife, who was ill and without
lodging, and explained to him that it was incumbent on him to provide
her with lodging and relief. He replied that he had no lodging for her ;
that she was a nasty beast, and he could not live with her. He shut the
window and went away. On the Thursday the prisoner offered to pay
for a bed for her at a public house, and she went to bed. On the Friday
she died. The deceased was labouring under a complication of diseases,
which must have speedily resulted in death. The surgeon stated that
he considered the period of her existence had been abridged in consequence
of her not having had shelter on the Wednesday night. Gurney, B., told
the jury that there was no ground for any charge against the prisoner for
having caused her death from want of food, as he had regularly paid her

(g) In R. V. Pelham, 8 Q.B. 959, Patte- (r) R. v. Marriott, 8 C. & P. 425, Patte-

Bon, J., said as to this dictum, ' I was son, J.

speaking of the particular facts before me ; («) R. v. luatan [189-3], 1 Q.B. 450. Cf. per

certainly I did not mean to lay down that Russell, C. J., in R. i<. Senior [1899] 1 Q.B.

there could be no indictment at all if there 283, 292, ante, p. 675 note \h).
was no death.'

CflAP. t.] Causing Death hy Savage Animals. 679

allowance to her, and he might have been compelled to pay her a larger
sum if that had not been sufficient. Under ordinary circumstances he
might have refused to have anything to do with her, but when she was
ill and without shelter on a cold and wet night, the question assumed a
different aspect, and it was whether they could certainly conclude that his
refusal to give her shelter at that time had the effect of causing her death
to occur sooner than that event would have happened in the ordinary
course of nature {t).

As to neglect, abandonment, or ill-treatment of the helpless not
followed by fatal results, see fost, Chapter VIII. p. 907.

By Perjury. — It has been said that at common law, it was murder to
bear false witness against another with an express premeditated design
to take away his life, if the innocent person was condemned and executed
(m). But this proposition is of doubtful authority. In 1692 a bill was
introduced in Parliament to make it a capital offence to commit or
suborn perjury in a capital case, but the bill did not pass into law {v).
In the last instance of a prosecution for murder by perjury, the
prisoners having been convicted, judgment was respited, in order that the
point of law might be more fully considered upon a motion in arrest of
judgment (w). The Attorney- General, however, declining to argue the
point, the prisoners were discharged of that indictment ; but it seems
that there are good grounds for supposing that the Attorney-
General declined to argue this point from prudential reasons, and
principally lest witnesses might be deterred from giving evidence
upon capital prosecutions if it must be at the peril of their own
lives, but not from any apprehension that the point of law was not
maintainable {x).

By Savage Animals. — ^If a man has a heast that is used to do mischief,
and he, knowing it, suffers it to go abroad, and it kills a man, this has
been considered by some as manslaughter in the owner {y) ; and it is
agreed by all that such a person is guilty of a very gross misdemeanor
{z) ; and if a man purposely turns such an animal loose, knowing its nature,
it is as much murder {a) as if he had incited a bear or a dog to worry
people ; and this, though he did it merely to frighten them, and make
what is called sport (6).

(t) R. V. Plummer, 1 C. & K. 600. The grounds for such an opinion, and that

prisoner was acquitted, otherwise the ques- nothing should be concluded from the

tion whether he was bound to provide waiving of that prosecution ; and in 1 East,

shelter for his wife would have been re- P. C. 333, note (a), the author states that

served. Of. E,. v. Connor, ante, p. 674 he had heard Lord Mansfield make the

note (a). same observation, and say, that the

(m) Britt. 0. 52. Bract, lib. 3, c. 4. IHawk. opinions of several of the judges at that

u. 31, s. 7. 3 Co. Inst. 91. 4 Bl. Com. 196. time, and his own, were strongly in support

(v) 19 St. Tr. 813. of the indictment. See also 19 St. Tr. 810,

(w) R. V. Maodaniel, Berry, and Jones, and Deut. c. xix., v. 16 ei sea.

[1756], Fost. 131. 19 St. Tr. 746, 810-814. (y) 4 Bl. Com. 197.

1 Leach, 44. This trial took place in 1756. (z) 1 Hawk. o. 31, s. 8.

The prisoners were indicted for murder (a) Cf. the Jewi.* law. Exod. c. xxi.

upon a conspiracy of the kind mentioned v. 29.

in the text against one Kidden, who had (6) 4 Bl. Cora. 197. Hale (1 P. C. 431)

been convicted and executed for a robbery says, that he had heard that it had been

upon the highway, upon the evidence of ruled to be murder, at the assizes held at

Berry and Jones. St. Albans for Hertfordshire, and the

(x) 4 Bl. Com. 196, note (g), where owner hanged for it ; but that it was but

Blackstone, J., says, that he had good an hearsay.

680 Of Homicide. [book ix.

On an indictment for manslaughter it appeared that the deceased, a
child about eight years old, was killed by a kick from the prisoner's horse
which had been in his possession about four years, and was a very
vicious and dangerous animal, and had kicked and injured several persons,
and some of these instances had been brought to the prisoner's knowledge,
and he otherwise knew of the propensities of the horse. The deceased,
with some other children, was on a common, and when on or very near
a public path crossing the common, a vicious horse belonging to the
prisoner and turned loose by him to graze on the common, kicked at the
deceased, struck her on the head, and killed her. It was a question
whether the deceased was on the path at the time she was kicked. The
question was left to the jury whether the death of the child was caused
by the culpable neghgence of the prisoner, and they were told that they
might find culpable neghgence if the evidence satisfied them that the
horse was so vicious and accustomed to kick as to be dangerous, and that
the prisoner knew that it was so, and with that knowledge turned it loose
on the common, through which there were to his knowledge open paths
on which the public had a right to pass. The jury found the prisoner
guilty of having caused the death by his culpable negligence, but that
the evidence did not satisfy them one way or the other whether the child
at the time she was kicked was on the path or beyond it. Upon a case
reserved, Erie, C.J., said, ' I am of opinion that this conviction should
be affirmed. The prisoner turned upon a common where there was a
public footway a very dangerous animal, knowing what its propensities
were, and it is found by the jury that the prisoner was guUty of culpable
negligence in so doing, and that the death of the child was caused by the
culpable negligence of the prisoner. That under ordinary circumstances
would be sufficient to sustain a conviction for manslaughter ; but the
point contended for by the prisoner is, that the child was not on the path
at the time when she was kicked, and her death caused thereby ; and
the jury were unable to say whether she was on the footway or beyond
at the time. For the purpose of the judgment I assume that the child
was not on the footway, but very near it. In point of reason I think
that the prisoner ought to be held responsible in this case, and that it is
not a ground of acquittal that the child had strayed off the pathway.'
(After citing Barnes v. Ward, 9 C. B. 414), he continued, ' The principle
of that case extends to a case like this, where a child walking on a pubhc
highway accidentally deviated into the neighbouring land, and met
with her death from the kick of a vicious horse close to the public way.'
. . . ' The public take a highway on the terms on which it is granted to
them by the grantor, and, as between them and the grantor, must use
the way subject to its risks ; but the public are entitled to use the way
without being subject to dangers like that in the present case. It was
injurious to persons using the pathway in question to turn on the common
a vicious animal of this kind. The judgment is confined to the fact of
the child being near to the path at the time, and that, having accidentally
strayed from the pathway, but being very near to it, her death was caused
by the culpable neghgence of the prisoner. I do not wish to sanction the
notion that, because a person may not be civilly hable for an act of negli-

CHAP. 1.] Causing Death by Want of Medical SJcill. 681

gence, he is therefore not criminally hable. It is not necessary to discuss
that proposition now ; however, I do not accede to it' (c).

By Want of Medical or Surgical Skill. — If a physician or surgeon, even
though he is not a regular or licensed one {d), acting with due care and
skiU, gives his patient a potion or plaster, intending to do him good,
and, contrary to the expectation of such physician or surgeon, it kills him,
this is neither murder nor manslaughter, but misadventure (e).

Upon an indictment for manslaughter by causing the death by thrust-
ing a round piece of ivory against the rectum, and thereby making a
wound through the rectum, it appeared that upon examination of the
body after death, a small hole was discovered perforated through the
rectum. The prisoner had attended the deceased, but there was no
evidence to shew how the wound had been caused, and questions were
put in order to shew that it might have been the result of natural causes,
and it was proposed to shew that the prisoner had had a regular medical
education, and that a great number of cases had been successfully treated
by him. HuUock, B. (stopping the case), ' This is an indictment for man-
slaughter, and I am really afraid to let the case go on, lest an idea should
be entertained that a man's practice may be questioned whenever an
operation fails. In this case there is no evidence of the mode in which
this operation was performed ; and even assuming for the moment that
it caused the death of the deceased, I am not aware of any law which says
that this party can be found guilty of manslaughter. It is my opinion
that it makes no difference whether the party be a regular or irregular
surgeon ; indeed, in remote parts of the country, many persons would
be left to die, if irregular surgeons were not allowed to practise. There
is no doubt that there may be cases where both regular and irregular
surgeons might be liable to an indictment, as there might be cases where,
from the manner of the operation, even malice might be inferred. All
that the law-books (/) have said has been read to you, but they do not
state any decisions, and their silence in this respect goes to shew what the
uniform opinion of lawyers has been upon this subject. As to what is
said by Lord Coke, he merely details an authority, a very old one, without
expressing either approbation or disapprobation ; however, we find that
Lord Hale has laid down what is the law on this subject. That is copied
by Blackstone, J., and no book in the law goes any further. It may be
that a person not legally qualified to practise as a surgeon may be liable
to penalties, but surely he cannot be liable to an indictment for felony.
It is quite clear you may recover damages against a medical man
for want of skill ; but as my Lord Hale (g) says, " God forbid that any
mischance of this kind should make a person guilty of murder or man-
slaughter." Such is the opinion of one of the greatest judges that ever
adorned the Bench of this country ; and his proposition amounts to this,
that if a person, bona-fide and honestly exercising his best skill to cure a

bility of the owners of animals, see 1 Beven, (e) 4 BI. Com. 197. 1 Hale, 429. And

NegUgenoe (3rd ed.), pp. 517-540. see R. v. Macleod, 12 Cox, 534.

(d) 1 Hale, 429. See cases cited, infra. (/) 4 Bl. Com. 197. 1 Hale, 429. < Co.
But see Britton, c. 5. 4 Co. Inst. 251. R. Inst. 251.

V. Simpson, Lancaster, 1829 ; Wilcock's L. (g) 1 Hale, 429.

Med. Prof. Append. 227 ; 1 Lew. 172 ; 4 C.

682 Of Homicide. [BooKix.

patient, performs an operation, which causes the patient's death, he is
not guilty of manslaughter. In the present case no evidence has been
given respecting the operation itself. It might have been performed
with the most proper instrument and in the most proper manner, and yet
might have failed. Mr. L. has himself told us that he performed an
operation, the propriety of which seems to have been a sort of vexata
qucestio among the medical profession ; but still it would be most dangerous
for it to get abroad that, if an operation performed either by a hcensed
or unHcensed surgeon should fail, that surgeon would be liable to be
prosecuted for manslaughter ' (h).

In E. V. Williamson {i), the prisoner, who was indicted for the murder
of Mrs. D., was not a regularly educated accoucheur, but was a person
who had been in the habit of acting as a man-midwife among the lower
classes of people. Mrs. D. had been delivered by the prisoner on a Friday,
and on the Sunday following an unusual appearance took place, which
the medical witnesses stated to be a prolapsus uteri ; this the prisoner
mistook for a remaining part of the placenta, which had not been brought
away at the time of the delivery : he attempted to bring away the
prolapsed uterus by force, and in so doing he lacerated the uterus, and tore
asunder the mesenteric artery ; this caused the death of the patient ;
and it appeared, from the testimony of a number of medical witnesses,
that there must have been great want of anatomical knowledge in the
prisoner. It was proved that the prisoner had safely delivered many other
women. Bllenborough, C.J., said, ' There has not been a particle of
evidence adduced which goes to convict the prisoner of the crime of
murder, but stiU it is for you to consider whether the evidence goes as far
as to make out a case of manslaughter. To substantiate that chaise,
the prisoner must have been guilty of criminal misconduct, arising
either from the grossest ignorance, or the most criminal inattention.
One or other of these is necessary to make him guilty of that criminal
negligence and misconduct which is essential to make out a case of
manslaughter. It does not appear that in this case there was any want
of attention on his part ; and from the evidence of the witnesses on his
behalf, it appears that he had deUvered many women at different times,
and from this he must have had some degree of skill ' (7).

In R. V. St. John Long (k), upon an indictment for manslaughter by
feloniously rubbing Miss C. with a dangerous hquid, it appeared that two
of the family had died of consumption, but that Miss C. had enjoyed good
health. Mrs. C. having heard that the prisoner had said that unless
Miss C. put herself under his care she would die of consumption in two or
three months, placed her under his course of treatment. The prisoner
rubbed a mixture on different parts of the bodies of his patients, and this
was appKed to Miss C. by the prisoner's direction. A wound appeared
on Miss C.'s back, to which the prisoner's attention was directed, and he

{h) R. V. Van Butohell, 3 C. & P. 629, confinements with perfect success, and that

Hullock, B., and Littledale, J. the deceased wished him to attend her in

(4) 3 C. & P. 635. her last confinement. See 4 C. & P. 407

(j) In addition to the facts above stated, (n).
it was proved that the prisoner had at- {k) 4 C. & P. 398.

tended the deceased in seven previous

etiAp. i.] Causing beath hy Want of Mdicat Skill 68S

stated that this proceeded from the inhaling, and that unless those ap-
pearances were produced he could expect no beneficial result. Miss C.
was suffering much from sickness, and the prisoner said it was of no
consequence, but a benefit ; and that those symptoms, combined with
the wound, were proof that his system was taking due effect. Miss C.
having got worse, the prisoner said that in two or three days she would be
better in health than she had ever been in her life. At this interview
the wound, which had extended, was shewn to the prisoner. He also
stated on that day, and on Monday, the 16th, that Miss C. was doing
uncommonly well. On Tuesday, the 17th, she died. An eminent
surgeon proved that on the Monday her back was extensively inflamed,
and in the centre was a spot, as large as the pabn of the hand, black,
and dead, and in a mortified state, and he thought that some very power-
fully stimulating liniment had been applied to her back ; that applying
a lotion of a strength capable of causing the appearances he saw, to a
person of the age and constitution of the deceased, if in perfect health,
was likely to damage the constitution and produce disease and danger.
The appearances on the back were quite sufficient to account for her
death. On the most careful examination of the body, after death, no
latent disease or seeds of disease were discovered. It was submitted,
for the defence, that, in point of law, this was nothing like a case of
manslaughter, and 1 Hale, P. C. 429, 4 Bl. Com. b. 4, c. 14, and E. v. Van
Butchell (Z), were cited and relied on. Park, J., said, ' I am in this diffi-
culty ; I have an opinion, and my learned brother differs from me ;
I must, therefore, let the case go to the jury.' Garrow, B., said, ' In E.
V. Van ButcheU the learned judge had very good ground to stop the case,
as there was no evidence as to what had been done. I make no dis-
tinction between the case of a person who consults the most eminent
physician, and the cases of those whose necessities or whose folly may
carry them into any other quarter. It matters not whether the individual
consulted be the president of the College of Physicians, the president
of the CoUege of Surgeons, or the humblest bone-setter of the village ;
but be it one or the other, he ought to bring into the case ordinary care,
skill, and diligence. Why is it that we convict in cases of death by
driving carriages ? Because the parties are bound to have skill, care,
and caution. I am of opinion that, if a person, who has ever so much
or so little skill, sets my leg, and does it as well as he can, and does it
badly, he is excused ; but suppose the person comes drunk, and gives
me a tumbler full of laudanum, and sends me into the other world, is it
not manslaughter ? And why is that ? Because I have a right to have
reasonable care and caution.' Park, J., in summing up, said, ' The learned
counsel truly stated in the outset that whether the party be licensed
or unlicensed is of no consequence, except in this respect, that he may be
subject to pecuniary penalties for acting contrary to charters or Acts of
Parliament ; but it cannot affect him here.' (After citing 1 Hale, 429,
as an authority in point, the learned judge proceeded), ' I agree with my
learned brother that what is called mala praxis in a medical person is a
misdemeanor ; but that depends upon whether the practice he has used

(i) Siipra, pp. 681, 682.

684 Of Homicide. [Bookix.

is so bad that everybody will see that it is mala praxis. The case at
Lancaster (m) differs from this case. I have communicated with Tmdal,
C.J., who tried that case, and he informed me that the man was a black-
smith, and was drunk, and so completely ignorant of the proper steps,
that he totally neglected what was absolutely necessary after the bitth
of the child. That certainly was one of the most outrageous cases that
ever came into a court of justice. I would rather use the words of Lord
Ellenborough in E. w. Williamson ' (n). (His lordship read them.) 'And
this is important here, for though he be not licensed, yet experience may
teach a man sufficient ; and the question for you will be, whether
the experience this individual acquired does not negative the supposition
of any gross ignorance or criminal inattention V (After setting the
authority of Hale, P. C. 429, against the dictum of Lord Coke,
4 Inst, 251, and citing the observations of Hullock, B., in E. v. Van
Butchell (o) with approbation, his lordship proceeded), 'With respect to
the application of the mixture, if he commanded the servant to use it,
it is the same as if he used it himself. Perhaps from the evidence you
will think that the act caused the death ; but still the question recurs as
to whether it was done either from gross ignorance or criminal inattention.
No one doubts Mr. B.'s skill, but that is not quite the question; it is not
whether the act done is the thing that a person of Mr. B.'s great skill
would do, but whether it shews such total and gross ignorance in the person
who did it, as must necessarily produce such a result. On the one hand,
we must be careful and most anxious to prevent people from tampering
in physic, so as to trifle with the life of man ; and, on the other, we must
take care not to charge criminally a person who is of general skill,
because he has been unfortunate in a particular case.' ' If you think
there was gross ignorance or scandalous inattention in the conduct of the
prisoner, then you will find him guilty ; if you do not think so, then
your verdict will be otherwise ' (p).

Upon a similar indictment against the same person (q) for causing
the death of Mrs. L., it appeared that she-put herself under his care on
October 6, at which time she was in very good health, to be cured of a
complaint she had in her throat. On the 3rd she had applied a small
blister to her throat, but the wound occasioned by it was nearly well on
the 6th. On the 7th, 8th, 9th, and 10th she went to the prisoner's, and
on the evening of the 10th complained to her husband of a violent burning
across her chest, in consequence of which he looked at it, and found a
great redness across her bosom, darker in the centre than at the other
parts ; she also complained of great chilliness, and shivered with cold, and
passed a very restless and uncomfortable night. On the 11th she was
very unwell all the day, the redness was more vivid, and the spot in the
centre darker, round the edges white and puffed up, and there was a dirty
white discharge from the centre. Cabbage leaves had been applied.
On the 12th the redness on the breast and chest was, if anything, greater.

(m) Probably R.ti. Ferguson, 1 Lew. 181. of the prisoner, and were satisfied with his

(?») Supra, p. 682. skill and diligence. Verdict guilty,
(o) Supra, pp. 681, 682. (q) R. v. St. John Long (No. 2), 4 C. &

(p) For the defence twenty-nine wit- P. 423, Bayley and BoUand, BB., and

nesses were called, who had been patients Bosanquet, J.

CHAP. I.] Causing Death by Want of Medical Skill. 685

In consequence of the symptoms, the husband went to the prisoner, who
asked why Mrs. L. had not come to inhale and go on with the rubbing ;
the husband replied it was impossible, she was so ill ; she had been con-
stantly unwell since the night of the 10th, and was suffering a great deal of
pain and sickness. The prisoner said it would soon go off, it was generally
the case. He was told of the shivering and chilliness, and that some hot
wine and water had been given to relieve her ; he said hot brandy and
water would have been better, and to put her head under the bed-clothes.
He was told that her chest and breast looked very red and very bad ; he
said that was generally the case in the first instance, but it would go ofE
as she got better, and that the husband need not be uneasy about it, as
there was no fear or danger. In the course of the day the cabbage leaves
had been removed, and a dressing of spermaceti ointment put on the
chest instead. In the evening the prisoner came and saw Mrs. L. and
looked at her breast, and observing the dressing said those greasy plasters
had no business there, and she ought to have continued the cabbage leaves.
He then asked for a towel, and began dabbing it on the breast, particu-
larly in the centre, where the discharge came from. He said that old
linen was the best thing to heal a wound of that kind. But she might use
the dressing if she liked it, he saw no objection, and when it skinned over
he would rub it again. He never saw her afterwards ; she died on the
8th of November. A surgeon proved that on October 12 he found a very
extensive wound covering the whole anterior part of the chest, which, in
his opinion, might be produced by any strong acid : the skin was des-
troyed ; the centre of the wound was darker, and in a higher state of
inflammation than the other parts ; he considered the wound very
dangerous to life when he first saw it : the centre spot, and the upper part
became gangrenous in about a week ; and in his opinion Mrs. L. died of
the wound, and according to his judgment it was not necessary or proper
to produce such a wound to prevent any difficulty in swallowing, and he
did not know of any disease in which the production of such a wound
would be necessary or proper. The body was internally and externally in
perfect health, except a little narrowness at the entrance of the oesophagus.
Another surgeon stated that he thought that a man of common
prudence or skill would not have applied a liquid which in two days would
produce such extensive inflammation, though all irritating external
applications sometimes exceeded the expectations of the medical attend-
ant ; but he should say that such conduct was a proof of rashness and
of ignorance. It was submitted that this was not manslaughter, but
homicide per infortunium ; that where the mind is pure, and the intention
benevolent, and there are no personal motives, such as a desire of gain,
if an operation be performed which fails, the party is not responsible ;
and that the indictment, which in substance charged that the death was
occasioned by the external application, was not supported. There was
no count imputing ignorance or want of skill, or hastiness, or roughness
of practice. Bayley, B., ' I agree with Lord Hale (r), and do not think
that there is any difference between a licensed and unlicensed surgeon.
It does not follow that in the case of either, an act done may not amount

(r) 1 Hale, 429.

686 Of Homicide. [book ix.

to manslaughter. There may be cases in which a regular medical man
may be guilty ; and that is all that Lord Hale lays down. And that may
be laid out of the question in this case. But the manner in which the
act is done, and the use of due caution, seem to me to be material. Foster,
J., p. 263, speaking of a person who happens to kill another by driving
a cart or other carriage, says, " If he might have seen the danger, and did
not look before him, it will be manslaughter for want of due circumspec-
tion." And there is also a passage in Bracton to the like effect. But
all that I mean to say now is, that there being conflicting authorities,
and the impression on our minds not being in your favour, I propose to
reserve the point. As to the indictment not being supported by the
evidence, one of the allegations is that the prisoner feloniously apphed
a noxious and injurious matter. And there is no doubt, if the jury
should be of opinion against the prisoner, that the facts proved will be
sufficient to warrant their finding that the prisoner feloniously did the
act ; for if a man, either with gross ignorance or gross rashness, administers
medicine and death ensues, it wiU be clearly felony.' It was then ob-
jected that in this case, as in larceny, there must be a trespass proved.
It was not proved that any fraud had been practised by the prisoner to
get the patient under his care ; nor had there been any avaricious seeking
after fees : if there had been it might have been evidence to shew the
existence of trespass. In R. v. Van Butchell [s), the case was stopped
because there was no evidence of how the operation was performed, and
here there was not any evidence to shew the mode in which the appUca-
tion was made. Bayley, B., ' In this case we may judge of the thing by
the effect produced, and that may be evidence from which the jury may
say whether the thing which produced such an effect was not improperly
applied.' BoUand, B., ' When you pass the line which the law allows,
then you become a trespasser.' Bayley, B., ' If I had a clear opinion
in your favour, or if my brothers had, or if we had any reason to think
that other judges were of a different opinion, it would become our duty to
give our opinion here, and prevent the case from going to the jury : but
feeling as I do, notwithstanding all I have heard to-day, and myself and
my brothers having had our attention directed to the law before we came
here, I think it right that the case should go to the jury; I think that if
the jury shall find a given fact in the way in which I shall submit it to them,
it will constitute the crime of feloniously administering, so as to make it
manslaughter. I do not charge it on ignorance merely, but there may
have been rashness ; and I consider that rashness will be sufficient to
make it manslaughter. As for instance, if I have a toothache, and a
person undertakes to cure it by administering laudanum, and says, " I
have no notion how much will be sufficient," but gives me a cup full,
which immediately kills me ; or if a person prescribing James's powder
says, " I have no notion how much should be taken," and yet gives me
a tablespoonful, which has the same effect ; such person acting with
rashness will, in my opinion, be guilty of manslaughter. With respect to
what has been said about a willing mind in the patient, it must be re-
membered that a prosecution is for the public benefit, and the willingness

(s) Supra, pp. 681, 682.

CHAP. I.] Causing Death by Want of Medical Skill. 687

of the patient cannot take away the offence against the public/ In
summing up, Bayley, B., said, ' The points for your consideration are,
first : whether Mrs. L. came to her death by the application of the liquid ;
secondly, whether the prisoner, in applying it, has acted feloniously or
not. To my mind it matters not whether a man has received a medical
education or not ; the thing to look at is, whether, in reference to the
remedy he has used, and the conduct he has displayed, he has acted with
a due degree of caution, or, .on the contrary, has acted with gross and
improper rashness and want of caution. I have no hesitation in saying
for your guidance, that if a man be guilty of gross negligence in attending
to his patient after he has applied a remedy, or of gross rashness in the
application of it, and death ensues in consequence, he will be liable to
conviction for manslaughter.' ' If you shall be of opinion that the
prisoner made the application with a gross and culpable degree of rash-
ness, and that it was the cause of Mrs. L.'s death, then, heavy as the
charge against him is, he will be answerable on this indictment for the
offence of manslaughter. There was a considerable interval between
the appHcation of the Hquid and the death of the patient ; yet if you
think that the infliction of the wound on the 10th of October was the
cause of the death, then it is no answer to say that a different course of
treatment by Mr. C. might have prevented it. You will consider these
two points : first, of what did Mrs. L. die ? You must be satisfied that
she died of the wound, which was the result of the application made on
the 10th of October ; and then, secondly, if you are satisfied of this,
whether the application was a felonious application ; this will depend
upon whether you think it was gross and culpable rashness in the prisoner
to apply a remedy which might produce such effects in such a manner
that it did actually produce them. If you think so then he wiU be
answerable to the full extent ' (t).

Any person, whether he is a properly qualified medical practitioner
or not, who professes to deal with the life or health of others, is bound
to have competent skill to perform the task that he holds himself out
to perform, and bound to treat his patients with care, attention,
and assiduity, and if a patient dies for want thereof, is guilty of
manslaughter (u).

Where a herb doctor was charged with causing death by improperly

{t) The prisoner was acquitted. There oise of it a reasonable degree of care and

was no negligence or inattention in the skill. He does not undertake, if he is an

prisoner after the applications, as he did attorney, that at all events you shall gain

not know where Mrs. L. was until October your cause ; nor does a surgeon undertake

12, and after that time she was attended that he will perforin a cure, nor does he

by Mr. C. See R. v. Maoleod, 12 Cox, 534, undertake to use the highest possible de-

where the prisoner administered morphia gree of skill ; there may bo persons who

without weighing it ; and R. »'. ZeUert, have higher education and greater advan-

148 C. C. C. Sess. Pap. 630, where a prisoner tages than he has ; but he undertakes to

administered cocaine to a woman who, un- bring a fair, reasonable, and competent

known to him, was suffering from a weak degree of skill. See R. v. Ferguson, 1 Lew.

heart. 181. R. v. Spilling, 2 M. & Rob. 107. R-

(«) R. V. Spiller, 5 C. & P. 333, Holland, v. Noakes, 4 F. & F. 920, where a chemist

B., and Bosanquet, J. In Lanphier v. made a mistake, and, under the circum-

Phipos, 8 C. & P. 475, Tindal, C.J., said, stances, it was held not to be negligence.

' Every person who enters into a learned Vide 1 Beven, Negligence (3rd ed.), 7, 1150.
profession undertakes tp bring to the exer-

688 Of Homicide. [book ix.

administering medicines, Pollock, C.B., told the jury that ' it is no crime
for any one to administer medicine, but it is a crime to administer it
so rashly and carelessly as to produce death ; and in this respect there is
no difierence between the most regular practitioner and the greatest
quack '(u). An unskilled practitioner is guilty of negligence if he
prescribes dangerous medicines of the use of which he is ignorant (w).

Where the deceased had once been operated upon for cancer, and the
disease again appeared in his face, and the prisoner, a blacksmith, told
him he could cure him, and the deceased consented to place himself in
his hands, and he put some kind of oil on his face, and then appUed
some kind of powder which caused the greatest agony, and death ensued
in nine days. After the prisoner had been employed there was a Hne of
demarcation around the tumour, and all the tissues were destroyed,
as if some powerful caustic had been applied, and the general symptoms
shewed poisoning by some irritant poison. On a post-mortem examination
marks were found of extensive inflammation in the bowels and numerous
ulcerations, which were the effects of mercury applied to the tumour ;
and the deceased died from the effects of corrosive subKmate, which was
sometimes applied to wounds, but not to cancer. The deceased must
have died of the cancer, but his death was accelerated by the application
of the sublimate. Watson, B., directed the jury to find the prisoner
guilty if they considered he took upon himself the responsibihty of
attending to a patient suffering under cancer, when he was not qualified
for the purpose. If he used dangerous applications, he was bound to bring
skill in their use ; and he thought that the prisoner's education and
employment made the use of these dangerous substances almost amount
to want of skill. The jury must, however, say whether what the prisoner
did produced or accelerated the death ; or (and) whether the prisoner
in their opinion had acted with neglect in using such remedies {x).

A prisoner, formerly a butcher, who had practised as a surgeon for
many years without any legal qualification, was indicted for the man-
slaughter of a man on whom he had performed an operation for a disease
in the bone. The only question was whether the practice of the prisoner
in the particular case amounted to gross and culpable negligence. Several
medical men having proved that the treatment pursued by the prisoner
exhibited the grossest and most culpable ignorance, it was proposed for
the defence to call witnesses to prove that the prisoner had treated them
for similar complaints successfully, and E. v. WiUiamson (y) was rehed
upon. Maule, J., refused to allow the witnesses to be examined, saying,
' In E. V. Williamson the witnesses were asked generally causa scierdCB.
Neither on the one hand nor the other can other cases be gone into. The

{v) R. V. Crick, 1 r. & F. 519. See R. v. manslaughter.'
Webb, 1 M. & Rob. 405 : 2 Lew. 196, where (w) R. v. Markuss, 4 F. & F. 356. R. v.
Lyndhurst, C.B., said, ' I agree that in Chamberlain, 10 Cox, 486. R. v. Bull,
these cases there is no difference between a 2 F. & F. 201, where Cookburn, C. J., said,
licensed physician or surgeon, and a person ' If a person takes upon himself to admin-
acting as physician or surgeon without a ister a dangerous medicine, it is his duty
licence. In either case, if a party, having to administer it with proper care, and if
a competent degree of skill and knowledge, he does it with negligence, he is guilty of
makes an accidental mistake in his treat- manslaughter.'
ment of a patient, through which mistake {x) R. v. Crook, 1 F. & F. 521.
death ensues, he is not thereby guilty of (y) Supra, p. 682.

CHAP. 1-1 Causing Death hy Infection, Rape, &c. 689

attention of the jury must be confined to the present case.' And in
summing up the learned judge said, ' If a medical or any other man caused
the death of another intentionally, that would be murder ; but where a
person not intending to kill a man, by his gross negligence, unskilfulness,
and ignorance caused the death of another, then he would be guilty of
culpable homicide ; and the question for the jury is, whether the deceased
died from the effects of the operation performed on him by the prisoner,
and whether the treatment pursued by the prisoner in the case of the
deceased was marked by negligence, unskilfulness, and ignorance ' (z).

In E. V. Noakes {a), a mistake on the part of a chemist in putting a
poisonous liniment into a medicine bottle, instead of a liniment bottle,
in consequence of which the liniment was taken by the customer internally
with fatal results, was held not to amount to such criminal negligence as
to warrant a conviction for manslaughter, the mistake having been made
under circumstances which rather threw the prisoner off his guard.

On an indictment for manslaughter against a medical man by
administering poison in mistake for another drug the prosecution must
shew that the poison got into the mixture in consequence of his gross and
culpable negligence, and it is not sufficient to shew merely that the
prisoner, who dispensed his own drugs, supplied a mixture which
contained a large quantity of poison (6).

By Infection. — The question is raised by Hale, whether, if the person
infected with the plague should go abroad with the intention of infecting
another, and another should thereby be infected and die, this would not
be murder ; but it is admitted that, if no such intention should evidently
appear, it would not be felony, though a great misdemeanor (c).

Persons who go about in public when suffering from infectious disease
may be indicted at common law {d), or summarily punished under the
Public Health Acts (e).

By Rape. — In R. v. Ladd (/), the question was raised but not
decided, whether an indictment for murder could be maintained for
killing a female infant by ravishing her ; but there is no doubt that it
may. The prisoner was indicted for the murder of a child under ten,
and it appeared that he had had connection with her and given her the
venereal disease ; and Wightman, J., told the jury that if they were
of opinion that the prisoner had had connection with her, and she died
from its effects, then the act being, under the circumstances of the case,
a felony in point of law, this would of itself be such malice as would
justify them in finding him guilty of murder [g).

(z) E. V. Whitehead, 3 0. & K. 202. report proceeds, ' The jury retired, and,

(a) 4 F. & F. 920. after some time, returned into Court, say-

(6) R. V. Spencer, 10 Cox, 525. ing that they were satisfied that he had had

infra. therefrom, but were not agreed as to Had-

{d) E. V. Vantandillo, 4 M. & Sel. 73 ; ing him guilty of murder. Wightman, J.,

16 R. E. 389. told them that, under these circumstances,

(e) See Bk. xi. o. iii. post, Vol. ii. p. 1843. it was open to them to find the prisoner

_ (/) 1 Leach, 96 : 1 East, P. C. 226. The guilty of manslaughter, and that they

judges to whom the case was referred gave might ignore the doctrine of constructive

no opinion upon the point, as the indict- malice if they thought fit. The jury found

ment was defective. a verdict of manslaughter.' Sed qucere.

(g) E. V. Greenwood, 7 Cox, 404. The C. S. G.

VOL. I. 2 Y

690 Of Homwide. Lbookix.

Sect. V.— Time of Death— Treatment of Wounds— Killing Person
Labouring under Disease.

Time of Death.— No person can be convicted of the murder or
manslaughter of another, who does not die within a year and a day after
the stroke received, or cause of death administered, in the computation
of which the whole day upon which the hurt was done is to be reckoned
the first Qi).

Treatment of Wounds.— Questions occasionally arise as to the
treatment of the wound or hurt received by the party kiUed. On an
indictment for murder it appeared that the deceased had been waylaid
and assaulted by the prisoner and severely cut across one of his fingers by
an iron instrument, and the surgeon urged him to submit to amputation,
but he refused, though he was told that his life would be in great hazard ;
and it was dressed day by day for a fortnight : when lockjaw came on,
induced by the wound in the finger, and the finger was then amputated,
but too late ; and the lockjaw ultimately caused death. The surgeon
thought it most probable that the life would have been saved if the finger
had been amputated in the first instance ; and it was contended that it
was the obstinate refusal to submit to amputation that was the cause of
the death. Maule, J., told the jury that if the prisoner wilfully, and
without any justifiable cause, inflicted the wound, which was ultimately
the cause of the death, he was guilty of murder ; that it made no difierence
whether the wound was in its own nature instantly mortal, or whether
it became the cause of death by reason of the deceased not having adopted
the best mode of treatment ; the real question was whether in the end
the wound was the cause of death (^). This ruling accords with the
judgment and dictum given in the earlier authorities (/).

On an indictment against a principal in the second degree for murder
by shooting in a duel, after the examination of the first medical witness,
who stated his opinion that the operation (of which no account is given
in the report) was the only chance of saving the life of the deceased ;
counsel for the prisoner were proceeding to cross-examine him as to the
nature and seat of the wound, to shew that the opinions he had expressed
of its danger and the necessity of the operation were not correct. Erie,
J., said : ' I presume you propose to call counter-evidence and impeach
the propriety of the operation ; but I am clearly of opinion that if a
dangerous wound is given, and the best advice is taken, and an operation
performed under that advice, which is the immediate cause of death, the
party giving the wound is criminally responsible." It was proposed to
shew that the opinion formed by the medical men was grounded upon
erroneous premises, and that no operation was necessary at all, or at least
that an easier and much less dangerous operation ought to have been
adopted ; and it was submitted that a person is not criminally responsible
where the death is caused by consequences which are not physically

(h) R. V. Dyson [1908], 2 K. B. 454, ao- R. v. Wall, 28 St. Tr. 51, 145, MaoDonald,

oepting the law as laid down in 1 Hawk. C.B. Stephen Dig. Cr. L. (6th ed.) art. 241.

c. 31, s. 9 ; 4 Bl. Com. 197 ; and 1 East, P. C. (j) 1 Hale, 428. Rew's case, Kel. (J),

343, 344. 26. See Stephen Dig. Cr. L. (6th ed.) art.

()■) B, V. Holland, 2 M. & Bob. 351. See 241, and R. v. Ryan, 16 W. R. 319.

CHAP. I.] Treatment of Wounds, &c. 691

the consequences of the wound, but can only be connected with the
first wound by moral reasonings ; as here that which occasioned death
was the operation, which supervened upon the wound, because the
medical men thought it necessary. Erie, J., said, ' I am clearly of
opinion, and so is my brother Eolfe, that where a wound is given,
which, in the judgment of competent medical advisers, is dangerous,
and the treatment which they hoyia fide adopt is the immediate cause of
death, the party who inflicted the wound is criminally responsible, and
of course those who aided and abetted him in it. I so rule on the present
occasion ; but it may be taken, for the purpose of future consideration,
that it having been proven that there was a gunshot wound, and a
pulsating tumour arising therefrom, which, in the bona fide opinion of
competent medical men, was dangerous to life, and that they considered
a certain operation necessary, which was skilfully performed, and was
the immediate and proximate cause of death ; the counsel for the prisoner
tendered evidence to shew this opinion was wrong, and that the wound
would not have inevitably caused death, and that by other treatment
the operation might have been avoided, and was therefore unnecessary.
I will reserve this point for the consideration of the judges, although I
have no doubt upon the subject. To admit this evidence would be to
raise a collateral issue in every case as to the degree of skill which the
medical men possessed ' (k).

Where the deceased had been severely kicked on the stomach, and
brandy had been given her by a surgeon to restore her, and part of it had
gone the wrong way into the lungs, and might, perhaps, have caused the
death, the prisoner was convicted of manslaughter, and Coleridge, J.,
said the case was like that where a dangerous wound was given, and an
operation was performed (I).

The prisoner had a fight with the deceased and struck him on the jaw,
breaking it in two places, which rendered an operation necessary.
Chloroform was administered, and the patient died under its
administration. It was not disputed that if the chloroform had not been
administered the man would not have died. Mathew, J., after consulting
Field, J., held that since the chloroform had been properly administered
by a regular medical practitioner, the fact that the death primarily
resulted from its use could not affect the criminal responsibility of the
accused, and told the jury that if an injury was inflicted by one man on
another which compelled the injured man to take medical advice, and
if death ensued from or in the course of an operation advised by the
medical man, the assailant was responsible in the eye of ihe law. The jury
must be satisfied that the prisoner injured the deceased ; that he rightly
consulted a competent medical man ; that an operation was recommended
for which the administration of chloroform was necessary ; and that the
deceased died from that administration (m).

Death from Disease supervening upon Blows.— It would seem that
where a fatal disease is set up by a felonious act, the person who did the
act maybe guilty of homicide. In Brintons, Ltd., v. Turvey (w), Lord

{k) R. V. Pym, 1 Cox, 339. (m) R. v. Davis, 15 Cox, 174.

(I) R. V. Molntyre, 2 Cox, 379. («) [1905] A. C. 230, 235.

2 y2

692 Of Homicide. [book ix.

Halsbury said, ' An injury to the head has been known to set up septic
pneumonia, and many years ago, I remember when that incident had
in fact occurred, it was sought to excuse the person who inflicted the
blow on the head, from the consequences of his crime, because his victim
had died of pneumonia and not as it was contended of the blow on the
head. It does not appear to me that by calling the consequences of an
accidental injury a disease, one alters the nature of the consequential
results of the injury that has been inflicted ' (o).

Killing a Person labouring under Disease.— If a man is sick of
some disease, which, by the course of nature, might possibly end his life
in half a year, and another gives him a wound or hurt which hastens his
death, by irritating and provoking the disease to operate more violently
and speedily, this is murder or other homicide, according to the circum-
stances, in the party by whom such hurt or wound was given. For the
person wounded does not die simply ex visitatione Dei, but his death is
hastened by the hurt which he received ; and the offender is not allowed
to apportion his own wrong (p).

Where a husband was indicted for the manslaughter of his wife
by accelerating her death by blows, and it appeared that she was at the
time in so bad a state of health that she could not possibly have lived more
than a month or six weeks under any circumstances : Coleridge, J.,
told the jury that if a person inflicted an injury upon a person labouring
under a mortal disease, which caused that person to die sooner than he
otherwise would have done, he was liable to be found guilty of man-
slaughter, and the question for them was whether the death of the
wife was caused by the disease under which she was labouring, or
whether it was hastened by the ill usage of the prisoner (q).

Sect. VI.— Provocation.

As the indulgence which is shewn by the law in some cases to the first
transport of passion is a condescension to the frailty of the hmnan frame,
to the furor brevis, which, while the frenzy lasts, renders a man deaf to
the voice of reason ; so the provocation which is allowed to extenuate
in the case of homicide must be something which a man is conscious of,
which he feels and resents at the instant the fact which he would
extenuate is committed (r). All the circumstances of the case must lead

(o) Cf. R. V. Dyson [1908], 2 K.B. 454 partly by a blow, and partly by a predls-

C. C. R., an indictment for manslaughter, posing circumstance, it was impossible so

where it was proved that the deceased (a to apportion the operations of the several

child) died of meningitis supervening on causes as to be able to say with certainty

cruel treatment. that the death was immediately occasioned

(p) Hale (1 P. 0. 428) says that thus he by any one of them in particular.' This

had heard that learned and wise judge, ruling is questioned in Roscoe Cr. Ev.

Rolle, J., frequently direct. In R. v. John- (13th ed.) 616, and as it would seem with

son, 1 Lew. 164, on an indictment for very good reason, as it is contrary to the

manslaughter in causing a death by a blow other authorities upon this point. C. S. G.

on the stomach, on a surgeon stating that See R. v. Martin, 5 C. & P. 128, Parke, B.,

a blow on the stomach in this state of and Stephen Dig. Or. L. (6th ed.) art. 241.
things, arising from passion and intoxica- (j) R. v. Fletcher, Gloucester Spr. Ass.

tion, was calculated to occasion death, but 1841. MSS. C. S. G. See R. v. Murton,

not so if the party was sober, HuUock, B., 3 F. & F. 492. R. v. Webb, 1 M. & Rob!

is said to have directed an acquittal, say- 405 ; 2 Lew. 196.
ing, ' that where the death was occasioned (r) Fost. 315.

CHAP. I.] Provocation. 693

to the conclusion that the aCt done, though intended or calculated to
cause death or great bodily harm, was not the result of cool deliberate
judgment and previous malignity of heart, but solely imputable to human
infirmity (s). For there are many trivial, and some considerable provo-
cations, which are not permitted to extenuate an act of homicide, or
rebut the conclusion of malice, to which the other circumstances of the
case may lead.

Words of Provocation. — In K. v. Taylor (t). Lord Mansfield said: ' It
is settled that words are not a sufficient provocation, but blows are a
sufficient provocation to lessen the crime into manslaughter.' In R. v.
Rothwell (m), where the prisoner was indicted for the wilful murder of
his wife, Blackburn, J., in summing up, said : ' As a general rule of law,
no provocation of words will reduce the crime of murder to that of
ma.nslaughter, but under special circumstances there may be such a
provocation of words as will have that effect ; for instance, if a husband
suddenly hearing from his wife that she had committed adultery, and
he, having had no idea of such a thing before, were thereupon to kill
her, it might be manslaughter. Now, in this case, words spoken by the
deceased just previous to the blows inflicted by the prisoner were these :
" Aye ; but I '11 take no more for thee, for I will have no more children
of thee. I have done it once, and I '11 do it again." Now, what you
will have to consider is, would these words, which were spoken just
previous to the blows, amount to such a provocation as would in an
ordinary man, not in a man of violent or passionate disposition, provoke
him in such a way as to justify him in striking her as the prisoner
did ? ' {v).

In R. V. Jones {w), the prisoner was charged with the murder- of his
wife by cutting her throat with a razor. The prisoner and his wife had
been living apart, and the prisoner asked her to come and live with him,
but she refused, saying, ' No. If I want 3s. I can get it off K., and I
can sleep with him.' Bucknill, J., after referring to R. v. Rothwell, supra,
told the jury that the great majority of the authorities were agreed that
words were not a sufficient provocation, but that they could, if they
thought fit, find that these words amounted to a provocation.

The earlier authorities indicate some uncertainty on the question how
far, if at all, words are sufficient provocation, and the question is involved
with the further question as to the nature of the weapon used, and the
character of the blow given.

In Lord Morley's case (x), where it was decided that if A. gave slighting
words to B., and B. thereupon immediately killed her, such kilhng would
be murder in B., it is also stated to have been held, that words of menace
or bodily harm would amount to such a provocation as would reduce the
offence of killing to manslaughter. But in another report of the same

(s) 1 East, P. C. 232. killing from the guilt of murder. Nor are

(t) 5 Burr. 2793, 2796. indecent provoldng actions or gestures ex-

(u) 12 Cox, 145. pressive of contempt or reproach, without

[v) And see 1 East, P. C. 233. In Eos- an assault upon the person.'

ter's Crown Law, p. 290, it is stated, ' words (w) [19081 148 Cent. Crim. Ct. Sess. Pap.

of reproach, how grievous soever, are not a 673 : 72 J.P. 215.

provocation, sufficient to free the party (a;) 1 Hale, 456. 6 St. Tr. 769.

694 Of Homicide. [book ix.

case this latter position is not to be found (y) ; and it has been stated
that such words ought at least to be accompanied by some act, denoting
an immediate intention of following them up by an actual assault (z).

A woman called a man, who was sitting drinking in an alehouse, ' a son
of a ivhore,' upon which the man took up a broomstaff, and at a distance
threw it at her and killed her ; and it was propounded to the judges
whether this was murder or manslaughter. Two questions were made,
1. Whether bare words, or words of this nature, would amount to such
a provocation as would extenuate the fact into manslaughter. 2. Admit-
ting that they would not, in case there had been a striking with such an
instrument as necessarily would have caused death, as stabbing with a
sword or shooting with a pistol ; yet whether this striking, so improbable
to cause death, would not alter the case. The judges were not
unanimous upon this case ; and a pardon was recommended {a).

A., passing by the shop of B., distorted his mouth, and smiled at him,
and B. killed him : this was held murder ; for it was no such provoca-
tion as would abate the presumption of malice in the party killing (&).

D. was sentenced for a gross libel to be flogged from Newgate to
Tyburn, and as he was returning from Tyburn, F., a barrister, asked him,
in a jeering way, whether he had run his heat that day ; he replied in
scurrilous words ; whereon F. ran him into the eye with a small cane
in his hand, and of this wound D. died, and F. was executed for his
murder (c)

If, on a quarrel between husband and wife, the husband strikes his
wife thereupon with a pestle, so that she dies presently, it is murder ;
and the wife's chiding will not be a provocation to extenuate it to
manslaughter {d).

If A. is passing along the street, and B., meeting him (there being a
convenient distance between A. and the wall), takes the wall of him, and
thereupon A. kills B., this is a murder ; but if B. had jostled A., his
jostling would have been a provocation, reducing the offence to
manslaughter (e).

If a party, being provoked by another making use of contemptuous
or insulting actions or gestures, gives the other a box on the ear, or strikes
him with a stick or other weapon not likely to kill, and kills him unluckily
and against his intention, it will be only manslaughter (/).

It seems that if A. uses indecent language to B., and B. thereupon
strikes A., but not mortally, and then A. strikes B. again, and then B.
kills A., the stroke by A. is a new provocation, and the conflict a sudden
falling out ; and on those grounds the killing is only manslaughter {g).

(y) Kel. (J) 55. considerable violence and insult in the

(z) 1 East, P. C. 233. jostling.

(a) 1 Hale, 456. (/) Fost. 291. 1 East, P. C. 233. 1

(6) Brain's case, 1 Hale, 455. Cro. Eliz. Hawk. c. 31, s. 33. 1 Hale, 456. R. v.

778. Kel. (J) 131. Woodhead, 1 Lew. 163. These authorities

(c) R. V. Francis, 3 Mod. 68, in R. v. also include words, but the ratio decidendi
Dangerfield. depends on the weapon used,

(d) Crompt. f. 120 (a). Kel. (J) 64. 1 (g) 1 Hale, 456, where it is said, that
Halo, 457. Because the pestle is an instru- this was held to be manslaughter, accord-
ment likely to endanger life. 1 East, P. C. ing to the proverb, ' the second blow makes
235. the affray ; ' and Hale says that this was

(e) 1 Half, 455. This case supposes the opinion of himself and some others.

CHAP. I.] Provocation. 695

Provocation by Assault. — Though an assault made with violence
or circumstances of indignity upon a man's person, and resented imme-
diately by the party acting in the heat of blood upon that provocation,
and killing the aggressor, will reduce the crime to manslaughter (h), yet
it must by no means be understood that the crime will be so extenuated
by any trivial provocation which in point of law may amount to an
assault ; nor in all cases even by a blow (i). Violent acts of resentment,
bearing no proportion to the provocation or insult, are barbarous, pro-
ceeding rather from brutal malignity than human frailty ; and barbarity
will often make malice (j).

Upon an indictment for murder it appeared that upon the evening
before the death the prisoner and the deceased had been quarrelling,
and that the deceased had used very aggravating language, as well
as very indecent and insulting gestures to the prisoner. The deceased
was found dead the next morning with a wound in the throat, which
had caused her death, and had been inflicted by some sharp instrument,
such as a razor. Within a short distance of the deceased there was lying
a sweeping-brush in such a position that it might be supposed to have
fallen from the hand of the deceased, supposing that a scuffle had taken
place before the fatal wound had been inflicted. Pollock, C.B., in
summing up, said, ' It is true that no provocation by words only (k)
will reduce the crime of murder to that of manslaughter, but it is equally
true that every provocation by blows will not have this effect, particularly
when, as in this case, the prisoner appears to have resented the blow by
using a weapon calculated to cause death. Still, however, if there be a
provocation by blows, which would not of itself render the killing man-
slaughter, but it be accompanied by such provocation by means of words
and gestures as would be calculated to produce a degree of exasperation
equal to that which would be produced by a violent blow, I am not pre-
pared to say that the law wiU not regard these circumstances as reducing
the crime to that of manslaughter only ' (I).

There being an affray in the street, S., a soldier, ran hastily towards
the combatants. A woman seeing him run in that manner, cried out,
' You will not murder the man, will you ? ' S. replied, ' What is that to do
with you, you bitch 1 ' The woman thereupon gave him a box on the ear,
and S. struck her on the breast with the pommel of his sword. The woman
then fled ; and S., pursuing her, stabbed her in the back. Holt, C.J.,
thought that this was murder, a single box on the ear from a woman not
being a sufficient provocation to kill in such a manner, after S. had given
her a blow in return for the box on the ear ; and it was proposed to have
the matter found specially. But it afterwards appearing, in the progress
of the trial, that the woman struck the soldier in the face with an iron
patten, and drew a great deal of blood, the killing was held to be no more
than manslaughter (m), as the smart of the man's wound, and the

{h) Kel. (J) 135. 4 BI. Com. 191. 1 406.

Kast, P. 0. 233. Lanure's case, 1 Hale, {k) Vide ante, p. 693.

456. (1) R. V. Sherwood, 1 C. & K. 556. R. v.

(i) See R. v. Lynch, 5 C. & P. 324, per Smith, 4 P. & F. 1066.

Lord Tenterden, C.J., post, p. 708. (m) Stedman's case, Fost. 292. MS.

(j) Per Lord Holt in Keate's case. Comb. Tracy and Denton, 57. 1 East, P. C. 234.

696 Of Homicide. [book ix.

effusion of blood, might possibly have kept his indignation boihng to the
moment of the fact (n).

Upon an indictment for murder by strangling, it appeared that the
prisoner had said, ' We quarrelled about some money I had won from him ;
he wanted it back, and I would not give it to him ; he struck me, and I
knocked him down ; he got up, and I knocked him down again, and
kicked him, and then I put a rope round his neck, and dragged him into
the ditch.' Patteson, J., said to the jury, ' If you even believe the pris-
oner's statement, that will not prevent the crime from being murder,
and reduce it to manslaughter. If two persons fight, and one of them
overpowers the other, and knocks him down, and then puts a rope round
his neck, and strangles him, that is murder. The act is so wilful and
deliberate that nothing can justify it ' (o).

Where a sergeant in the army laid hold of a fifer, and insisted upon
carrpng him to prison : the fifer resisted, and whilst the sergeant had
hold of him to force him, he drew the sergeant's sword, plunged it into his
body, and killed him. The sergeant had no right to make the arrest,
except under the articles of war ; and the articles of war were not given
in evidence. Buller, J., considered it in two lights : first, if the sergeant
had authority ; and, secondly, if he had not, on the account of the cool-
ness, deliberation, and reflection with which the stab was given. The
jury found the prisoner guilty {p).

A drummer and a private soldier were pressed by one M. to enlist him,
and gave him a shilling for that purpose ; but they had no authority to
enlist anybody. M. wanted afterwards to go away ; but they would not
let him, and a crowd collected. The drummer drew his sword, stood in
the doorway of the room where they were, and swore he would stab any
one who offered to go away. The landlord, however, got by him ; and
the landlord's son seized his arm in which the sword was, and was wresting
the sword from him, when the private, who had been struggling with
M., came behind the son, and stabbed him in the back. He was indicted
for stabbing with intent to murder, &c., and it was urged for the prisoner,
that the soldiers had a right to enlist M., and to detain him ; and that if
death had ensued, the offence would not have been murder ; but, upon
the point being saved, the judges were all of a contrary opinion {q).

Two soldiers came at eleven o'clock at night to a publican's, and
demanded beer, which he refused. An hour and a half later, when the
door was opened, one of them rushed in, the other remaining without,
and renewed his demand for beer ; to which the landlord returned the
same answer ; and on his refusing to depart, and insisting on having beer,
and offering to lay hold of the landlord, the latter at the same instant
collared him ; the one pushing and the other pulling each other towards
the outer door, where when the landlord came he received a violent blow

(ra) Fost. 292. See R. v. Tranter, 16 St. and for want of proof of this, held the con-

Tr. 1 ; 1 Str. 499. viction wrong. See Holt's case, 2 Leach,

(o) R. V. Shaw, 6 C. & P. 372, Patteson, 593. See Buokner's case, Sty. 467 ; 82

J. E. R. 867. The articles of war are now

ip) R. V. Withers [1784], MS. Bayley, judicially noticed, 44 & 45 Vict. c. 58,

J., and 1 East, P. C. 233. The judges, on ss. 69, 70.

being consulted, were unanimous that the (g) R. v. Longden, R, & R, 228, MS,

articles of war should have been produced, Bayley, J,

CHAP. I.] Provocation. 697

on the head with some sharp instrument from the other soldier, who had
remained without, which occasioned his death a few days afterwards.
BuUer, J., held this to be murder in both, notwithstanding the previous
struggle between the landlord and one of them. For the landlord did no
more in attempting to put the soldier out of his house at that time of the
night, and after the warning he had given him, than he lawfully might ;
which was no provocation for the cruel revenge taken ; more especially
as there was reasonable evidence of the prisoners having come the second
time with a deliberate intention to use personal violence, in case their
demand for beer was not complied with (r).

In cases of provocation, not amounting to assault, the material
question is, whether malice must be inferred from the sort of punishment
inflicted, from the nature of the instrument used, and from the manner
of the chastisement (s) ; for if, on any sudden provocation of a sHgha
nature, one person beats another in a cruel and unusual manner, so that
he dies, it is murder by express malice ; though the person so beating the
other did not intend to kill him (t).

One F., a soldier, was in a pulDlic-house, and asked a girl to drink with
him : upon which one A. S., with whom he had cohabited, seized his pot,
abused him very much, and threw down his beer. F. then caught the
pot from her, and struck her twice on the head with it : the blood gushed
out, and she was taken to a hospital, where the wound was examined,
and did not appear dangerous, being about a quarter of an inch deep :
but it produced an erysipelas, which caused an inflammation of the brain,
and the woman died. -The witness, who saw the blows, did not think the
prisoner intended to do the woman any grievous bodily harm. Gibbs,
C.B., after telUng the jury that if the disease which caused the death
originated from the wound, it was the same as if the wound had caused
the death ; that the primary cause was to be considered (tt) ; went on to
say that the aggravation, though not constituting a provocation which
would extenuate the giving a deadly blow, would palliate the giving a
moderate blow ; and left it to the jury whether those blows were such as
were likely to be followed by death, or by a disease Ukely to terminate in
death. The jury thought that the blows were not of this kind, and the
prisoner was found guilty of manslaughter only (u).

If, without adequate provocation, a person strikes another with a
deadly weapon, likely to occasion death, although he had no previous
malice against the party, yet he is to be presumed to have had such
malice at the moment from the circumstances, and he is guilty of
murder (v). Where, therefore, a boy, twelve years old, who had iDeen
in the habit of going to a cooper's shop and taking away chips, was told
one morning by the cooper's apprentice not to come again ; he however
went again in the afternoon, and the apprentice spread his arms out to
prevent his reaching the spot where he usually gathered the chips, on which
the boy started off, and in passing a work bench, took up a whittle (a sharp-

(r) R. V. Willoughby [17911, MS. and 1 {tt) Vide ante, p. 691.

East, P. C. 288 ; and see B. v. Brennan, 4 (u) B. v. Freeman, 0. B. January, 1814,

Canada Cr. Gas. 41. MSS. Bayley, J.

(a) 1 East, P. C. 235, 238, 239. {v) B. ■;;. LangstafEe, 1 Lew. 162, HuJ.

(i) 4 Bl. Com. 199, See the pestle cage, lock, B,
ante, p. 694-

698 Of Homicide. [book ix.

pointed steel knife with a long handle) and threw it at the apprentice,
and the blade of the whittle entered his body, to the depth of four inches,
and caused his death ; the jury having found him guilty upon an indict-
ment for manslaughter, HuUock, B., observed, that had he been indicted
for murder, the evidence would have sustained the charge (w). So where
on an indictment for wounding it appeared that W. and two women met the
prisoner at midnight on the highway, and some words passed between them,
when W. struck the prisoner, who then made a blow with a knife, it was
held that unless the prisoner apprehended robbery or some similar offence,
or danger to life or some serious bodily harm, not simply being knocked
down, he would not be justified in using the knife in self-defence {x).

Nature of the Instrument used. — The nature of the instrument
used was much considered in Eowley's case {y) : The prisoner's son fought
with another boy, and was beaten ; he ran home to his father all bloody,
who presently took a cudgel, ran three quarters of a mile, and struck the
other boy upon the head, upon which he died {z). This was ruled man-
slaughter, because done in a sudden heat of passion ; but upon this case
Foster, J., makes the following remarks (a) : — ' Surely the provocation
was not very grievous. The boy had fought with one who happened
to be an over-match for him, and was worsted ; a disaster slight enough,
and very frequent among boys. If upon this provocation the father,
after running three quarters of a mile, had set his strength against the
child, had despatched him with a hedge stake, or any other deadly
weapon, or by repeated blows with his cudgel, it must, in my opinion,
have been murder ; since any of these circumstances would have been a
plain indication of malice ; but with regard to these circumstances, with
what weapon, or to what degree, the child was beaten, Coke is totally
silent. But Croke (6) sets the case in a much clearer light, and at the
same time leads his readers into the true grounds of the judgment. His
words are, " Royley struck the child with a little cudgel, of which stroke
he afterwards died." I think it may be fairly collected from Croke's
manner of speaking and Godholt's report (c), that the accident happened
by a single stroke with a cudgel not likely to destroy, and that death did not
immediately ensue. The stroke was given in heat of blood, and not with
any of the circumstances which import malice, and therefore man-
slaughter. I observe that Lord Raymond lays great stress on this
circumstance : that the stroke was with a cudgel, not likely to kill ' (d).

And where the prisoner had struck a boy, his servant, with one of his
clogs, becausehe had not cleaned them, it was held to be only manslaughter,
because the prisoner could not, from the instrument he had used, have had
any intention to take the boy's life (e).

{w) R. V. Langstaffe, supra. (6) Cro. Jac. 296 ; 79 E. R. 254.

(x) R. V. Hewlett, 1 F. & F. 91, Crowder, (c) Godb. 182 ; It is there said to have

J- been a ' rod,' meaning probably a small

{t/) 12 Co. Rep. 87 ; 77 E, R. 1364. wand or switch.

(z) In 1 Hale, 453, the words are, ' and (d) 2Ld. Raym. 1498. vln(€,p. 694,note

strikes C. that he dies.' Foster, J., in (/). See R. <;. Welsh, 11 Cox, 336, and R. v.

citing the case, says, that the father, after Hazel, 1 Leach, 368 ; 1 East, P. C. 236,

running three-quarters of a mile, beats the post, p. 700.

other boy, 'who dieth o£ this beating.' (e) R. w. Turner, cited in Comb. 407, 408,

Fost. 294. and 1 Ld. Raym. 143, 144. 2 Ld. Raym.

(a) Fost, 294. 1498. The clog was small ; and Holt,

CHAP. I.] Provocation. 699

On an indictment for wounding with a tin can, with which the prisoner
had struck the prosecutor four times on the head, Alderson, B., directed
the jury to consider, ' whether the instrument employed was, in its
ordinary use, likely to cause death ; or, though an instrument unhkely,
under ordinary circumstances, to cause death ; whether it was used in such
an extraordinary manner as to make it likely to cause death, either by
continued blows or otherwise ? A tin can, in its ordinary use, was not
likely to cause death or grievous bodily harm ; but if the prisoner struck
the prosecutor repeated blows on the head with it, you will say, whether
he did this merely to hurt the prosecutor, and give him pain, as by giving
him a black eye or a bloody nose, or whether he did it to do him some
substantial grievous bodily harm. When a deadly weapon, such as a
knife, a sword, or gun, is used, the intent of the party is manifest ; but
where an instrument like the present is used, you must consider, whether
the mode in which it was used satisfactorily shews that the prisoner
intended to inflict some serious or grievous bodily harm with it ' (/).

Upon an indictment for murder, it appeared that a body of persons
were committing a riot, and the constables interfering for the purpose
of dispersing the crowd, and apprehending the offenders, the mob
offered resistance, and one of the constables was beaten severely. The
prisoners all took part in the violence used ; some by beating him with
sticks, some by throwing stones, and others by striking him with their
fists ; of this aggregate violence, the constable afterwards died. Alderson,
B., said, ' The principles on which this case will turn, are these : — If a
person attacks another without justifiable cause, and from the violence
used death ensues, the question which arises is, whether it be murder or
manslaughter ? If the weapon used were a deadly weapon, it is reason-
able to infer that the party intended death ; and if he intended death,
and death was the consequence of his act, it is murder. If no weapon
was used, then the question usually is, was there excessive violence ?
If the evidence as to this be such as that the jury think there was an inten-
tion to kill, it is murder ; if not, manslaughter. Thus, if there were
merely a blow with a fist, and death ensued, it would not be reasonable
to infer that there was an intention to kill ; in that case, therefore,
it is manslaughter. But if a strong man attacks a weak one, though no
weapon be used, or if, after such injury by beating, the violence is still
continued, then the question is whether this excess does not shew a general
brutality, and a purpose to kill, and if so, it is murder. Again, if the
weapon used be not deadly, e.g. a stick, then the same question as above
will arise as to the purpose to kill ; and in any case if the nature of the
violence, and the continuance of it be such, as that a rational man would
conclude that death must follow from the acts done, then it is reasonable
for a jury to infer that the party who did them intended to kill, and to
find him guilty of murder. Again, it is a principle of law, that if several
persons act together in pursuance of a common intent, every act done in
furtherance of such intent by each of them is, in law, done by all. The

C.J., said, that it was an unlikely thing to endanger life, it seems that the intention of

kill the boy. See R. v. Wiggs, 1 Leach, 378 the party to kill will be implied from that

(n), post, p. 768. If, however, the instru- oiroumstanoe.
ment used is so improper as manifestly to (/) R. v, Howlett, 7 C. & P. 274.

700 Of Homicide. [book ix.

act, however, must be in pursuance of the common intent. Thus, if
several were to intend and agree together to frighten a constable, and one
were to shoot him through the head, such an act would affect- the
individual only by whom it was done. Here, therefore, in considering
this case, you must determine, whether aU these prisoners had the common
intent of attacking the constables ; if so, each of them is responsible for
all the acts of all the others done for that purpose ; and if all the acts
done by each, if done by one man, would together shew such violence, and
so long continued, that from them you would infer an intention to kill the
constable, it will be murder in them all. If you would not infer such
purpose, you ought to find them guilty only of manslaughter ' {g).

Slight Provocation. — In some instances sUght provocations have been
considered to extenuate the guilt of homicide, upon the ground that the
conduct of the party killing upon such provocations may fairly be attri-
buted to an intention to chastise, rather than to a cruel and implacable
malice. But it must appear that the punishment was not administered
with brutal violence, nor greatly disproportionate to the ofience ; and
that the instrument was not such as, from its nature, was likely to
endanger life Qi).

If it may be reasonably collected from the weapon made use of, or
from any other circumstance, that the party intended to kill, or to do
some great bodily harm, such homicide will be murder. Accordingly,
where a parker, finding a boy stealing wood in his master's ground,
bound him to his horse's tail and beat him, and the horse taking fright,
and running away, the boy was dragged on the ground till his shoulder
was broken, whereof he died ; it was ruled murder : for it was not only
an illegal, but a deliberate and dangerous act ; the correction was
excessive and savoured of cruelty (t).

Where a person whose pocket had been picked, encouraged by a
concourse of people, threw the pickpocket into an adjoining pond, in
order to avenge the theft by ducking him, but without any apparent
intention to take away his life, and the pickpocket was drowned, the
offence was ruled to be only manslaughter (j).

Where A. finding a trespasser upon his land, in the first transport of
his passion, beat him and unluckily kiUed him, and it was held to be man-
slaughter (k), it must be understood that he beat the trespasser, not with
a mischievous intention, but merely to chastise him, and to deter him
from repeating the trespass. For if A. had knocked his brains out with
a bill or hedge stake, or had killed him by an outrageous beating with an
ordinary cudgel, beyond the bounds of a sudden resentment, it would have
been murder {I) . M. having been greatly annoyed by persons trespassing
upon his farm, repeatedly gave notice that he would shoot anyone who
did so, and at length discharged a pistol at a trespasser, and wounded
him in the thigh, which led to erysipelas, and the man died : M. was
convicted of murder (m).

(g) R. V. Macklin, 2 Lew. 225. (j) R, v. Fray, Old Bailey, 1785. 1

(h) Fost. 291. Hawk. c. 31, s. 38. 1 East, P. C. 236.

(i) Halloway's case, Cro. Car. 131. (h) 1 Hale, 473. 1 East, P. C. 237.

Palm. 645. I Hawk. o. 31, s. 42. W. (I) Fost. 291.

Jones, 198. Kel. (J) 127. 1 East, P. 0. (m) R. i;. Moir, Rosooe Or. Ev. (ISthed.)

237. Fost, 292, 647, Tenterden, C J. See this case as

CHAP. I.] Provocaiion. 701

As trespass against the property of another is not such provocation as
will warrant the owner in making use of a deadly or dangerous weapon ;
more particularly if such violence is used after the trespass has ceased.
But if the beating is with an instrument, or in a manner not likely to kill,
it will only amount to manslaughter : and it is lawful to use against a
trespasser, who comes without any colour, to take the goods of another,
such force as is necessary to make him desist {n).

A man is not authorised to fire a pistol on every forcible and
nocturnal intrusion or invasion of his dwelling-house. In E. v. Meade (o)
M., who was indicted for murder, had made himself obnoxious to some
boatmen, by giving information of smuggling transactions, in which some
of them had been engaged ; and they, in revenge, ducked him, and were
in the act of throwing him into the sea, when he was rescued by the police ;
the boatmen, however, as he was going away, called to him that they
would come at night, and puU his house down. In the middle of the
night a great number of persons came about his house, singing songs of
menace, and using violent language, indicating that they had come with
no friendly or peaceable intention. M., under apprehension, as he alleged,
that his life and property were in danger, fired a pistol, by which one of
the party was killed. Holroyd, J., said to the jury, ' A civil trespass will
not excuse the firing a pistol at a trespasser, in sudden resentment or
anger. If a person take forcible possession of another man's close, so
as to be guilty of a breach of the peace, it is more than a trespass : so if
a man with force invades and enters into the dwelling of another ;
but a man is not authorised to fire a pistol on every intrusion or invasion
of his house : he ought, if he has a reasonable opportunity, to endeavour
to remove him without having recourse to the last extremity : but the
making an attack upon a dwelling, and especially at night, the law regards
as equivalent to an assault upon a man's person, for a man's house is his
castle : and, therefore, in the eye of the law, it is equivalent to an assault ;
but no words or singing are equivalent to an assault, nor will they authorise
an assault in return. If you are satisfied that there was nothing but
the song, and no appearance of further violence : if you believe that
there was no reasonable grovmd for apprehending further danger, but
that the pistol was fired for the purpose of killing, then it is murder.
There are cases where a person, in the heat of blood, kills another, that the
law does not deem it murder, but lowers the offence to manslaughter ;
as, where a party coming up, by way of making an attack, and, without
there being any previous apprehension of danger, the party attacked.
Instead of having recourse to a more reasonable and less violent mode
of averting it, having an opportunity so to do, fires on the impulse of the
moment. If you are of opinion that the prisoner was really attacked,
and that the deceased and his party were on the point of breaking in, or
likely to do so, and execute the threats of the day before, he was, perhaps,
justified in firing as he did ' (p).

stated in R. v. Prioe, 7 0. & P. 178. Moir (m) 1 Hale, 474, 486. 1 East, P. C. 288.

had gone home to fetch his pistols after he (o) 1 Lew. 184.

found the deceased trespassing, and the (p) In E. u. Symondson, 60 J. P. 645,
deceased persisted in trespassing, and on an indictment for manslaughter, Ken-
some angry words passed before the pistol nedy, J., told the jury ' With reference to
was discharged. the defence that the prisoner was acting in

702 Of Homicide. [book ix.

A person must only use so much force as is reasonably necessary in
order to turn a mere trespasser out of his house. Upon an indictment
for manslaughter, it appeared that the prisoner, upon returning home,
found the deceased in his house, and desired him to withdraw, but he
refused to go : upon this, words arose between them, and the prisoner,
becoming excited, proceeded to use force, and, by a kick which he gave
to the deceased, caused his death. Alderson, B., said : ' A kick is not
a justifiable mode of turning a, man out of your house, though he be a
trespasser. If a person becomes excited, and gives another a kick, it is
an unjustifiable act. If the deceased would not have died but for the
injury he received, the prisoner, having unlawfully caused that injury,
is guilty of manslaughter ' (q).

Upon an indictment for manslaughter, it appeared that a man and
his servant had insisted upon placing corn in the prisoner's barn, which
she refused to allow ; they exerted force : a scuffie took place, in which
the prisoner received a blow on the breast, whereon she threw a stone
at the deceased, the master, which killed him. Holroyd, J., said : ' The
case fails, as it appears the deceased received the blow in an attempt to
invade the prisoner's barn against her will. She had a right to defend
her barn, and to employ such force as was reasonably necessary for that
purpose ; and she is not answerable for any unforeseen accident that may
have happened in so doing ' (r).

Where a man finds another in the act of adultery with his wife, and
kills him or her (s) in the first transport of passion, he is only guilty of
manslaughter {t), for the provocation is grievous, such as the law
reasonably concludes cannot be borne in the first transport of passion. But,
killing an adulterer deliberately, and upon revenge, would be murder (u).
So it seems that if a father were to see a person in the act of committing
an unnatural offence with his son, and were instantly to kill him, it
would be only manslaughter ; but if he only hears of it from others, and
goes in search of the person afterwards, and kills him, when there has
been time for the blood to cool, it will be murder {v).

Upon an indictment for murder, Rolfe, B., in summing up, said, 'To
take away the life of a woman, even your own wife, because you suspect
that she has been engaged in some ilHcit intrigue, would be murder' {w).

Where a man was charged with the murder of his son-in-law, who had
assaulted the prisoner's daughter in his presence in a violent manner,
although not in a manner to endanger life, Cockburn,C.J., seemed to think
that the offence might be reduced to manslaughter, and the prisoner was
found guilty of that offence only (x).

defence of his property, in my judgment, (s) R. v. Pearson, 2 Lew. 216, Parke, B.
the infliction of death must be to prevent (t) Manning's case, T. Raym. 212. 1
no ordinary crime, it must be a crime of a Ventr. 158. The Court directed the burn-
serious and also felonious nature. You ing in the hand to be inflicted gently, be-
must not shoot a trespasser merely because cause there could not be a greatCT provooa-
he is a trespasser. If he shews an inten- tion.
tion to accomplish a felonious purpose hy (u) Post, p. 706.

force, extreme measures may be used.' See (a) R. v. Fisher, 8 C. & P. 182, Park, J.,

R. V. Dennis, 69 J. P. 256. Parke, B., and Law, Recorder.

iq) R. «. Wild, 2 Lew. 214. R.w.Brennan, («,•) R. v. Kelly, 2 C. & K. 814.

4 Canada Cr. Cas. 41. (x) R. v. Harrington, 10 Cox, 370.

(r) R. V. Hinchcliffe, 1 Lew. 161.

CHAP. I.] Provocation. 703

On the indictment of a husband for murdering his wife, it appeared
that words had passed between them, and that the husband took a knife,
and in a struggle stabbed the wife. For the defence, witnesses were
called to shew that the wife had been in the habit of making violent
attacks upon her husband, seizing him by the neckerchief and twisting
it tight so as almost to strangle him, and cause the bystanders to interfere
and also that the prisoner had abscesses on his neck, which would render
him particularly sensitive to such assaults. Byles, J., after consulting
Bramwell, B., admitted the evidence, but said it must be confined to
explaining the nature of this particular attack (y).

Provocation no Defence where Express Malice. — The plea of provoca-
tion will not avail where express malice is proved (2).

The prisoner, with the deceased, who was his brother, and some
neighbours, were drinking in a friendly manner at a public-house ; till,
growing warm in liquor, but not intoxicated, the prisoner and the deceased
played at cudgels by agreement. The prisoner in the cudgel-play gave the
deceased a smart blow on the temple. The deceased thereupon grew
angry ; and throwing away his cudgel, closed in with the prisoner, and
they fought a short space in good earnest : but the company interposing
they were soon parted. The prisoner then quitted the room in anger ;
and when he got into the street, he was heard to say, ' Damnation seize
me if I do not fetch something, and stick him ! ' And being reproved
for using such expressions, he answered, ' I '11 be damned to all eternity
if I do not fetch something and run him through the body ! ' In about
half an hour the prisoner returned. The door of the room being open into
the street, the prisoner stood leaning against the door-post, his left hand
in his bosom, and a cudgel in his right. The deceased invited him into
the company ; but the prisoner answered, ' I will not come in.' ' Why
will you not ? ' said the deceased. The prisoner replied, ' Perhaps you
will fall on me and beat me.' The deceased assured him he would not ;
and added, ' Besides, you think yourself as good a man as me at cudgels,
perhaps you will play at cudgels with me.' The prisoner answered,
' I am not afraid to do so, if you will keep off your fists.' Upon these
words the deceased got up and went towards the prisoner, who dropped
the cudgel as the deceased was coming up to him. The deceased took
up the cudgel, and with it gave the prisoner two blows on the shoulder.
The prisoner immediately put his right hand into his bosom, and drew
out the blade of a tuck sword, crying, ' Damn you, stand off, or I '11 stab
you ; ' and immediately, without giving the deceased time to step back,
made a pass at him with the sword, but missed him. The deceased there-
upon gave back a little ; and the prisoner shortening the sword in his
hand, leaped forward toward the deceased and stabbed him to the heart,
and he instantly died. The judges unanimously agreed that there were
in this case so many circumstances of deliberate malice and deep revenge
on the defendant's part, that his offence could not be less than wilful
murder. He vowed he would fetch something to stick him, to run him
through the body. Whom did he mean by him ? Every circumstance

(y) R. V. Hopkins, 10 Cox, 229. ante, p. 656.

(2) See E. V. Sattler, D. & B., 539, and

704 Of Homicide. [book ix.

in the case shewed that he meant his brother. He returned to the com-
pany, provided, to appearance, with an ordinary cudgel, as if he intended
to try skill and manhood a second time with that weapon : but the
deadly weapon was all the while carefully concealed under his coat ;
which most probably he had changed for the purpose of concealing the
weapon. He stood at the door, refusing to come nearer, but artfully
drew on the discourse of the past quarrel ; and as soon as he saw his
brother disposed to engage a second time at cudgels, he dropped his
cudgel and betook him to the deadly weapon, which tiU that moment
he had concealed. He did indeed bid his brother stand off : but he gave
him no opportunity of doing so before the first pass was made. His
brother retreated before the second : but he advanced as fast, and took
the revenge he had vowed. The circumstance of the blows before the
sword was produced, which probably occasioned the doubt, did not alter
the case, nor did the precedent quarrel ; because, all circumstances
considered, he appeared to have returned with a deliberate resolution
to take a deadly revenge for what had passed : and the blows were
plainly a provocation sought of his part, that he might execute the wicked
purpose of his heart with some colour of excuse {a).

It was considered that the blows with the cudgel were a provocation
sought by the prisoner, to give occasion and pretence for the dreadful
vengeance which he meditated : and where the provocation is sought by
the party killing, and induced by his own act, in order to afford him a
pretence for wreaking his malice, it wiU in no case extenuate the killing (6).
Thus where A. and B. having fallen out, A. said he would not strike, but
would give B. a pot of ale to strike him ; upon which B. did strike,
and A. killed him, it was held to be murder (c). So where A. and B.
were at some diSerence ; A. bade B. take a pin out of his (A.'s) sleeve,
intending to take the occasion to strike or wound B. ; B. accordingly
took out the pin, and A. struck him and killed him ; and this was ruled
murder : first, because it was no provocation when B. did it by the consent
of A. ; and, secondly, because it appeared to be a maUcious and deliberate
artifice, by which to take occasion to kill B. (d).

Where upon an indictment for maliciously wounding under 9 Geo. IV.
c. 31 (rep.), it appeared that some words passed between the prisoner
and a third person, after which he walked up and down the passage of the
house with a sword-stick in his hand, with the blade open, and was heard
to say, ' If any man strikes me I will make him repent it.' He was
desired to put up the stick, which he refused to do ; and shortly after the
prosecutor, ignorant of what had occurred, but perceiving the prisoner
was creating a disturbance, struck the prisoner twice with his fists, when
the prisoner stabbed him. Parke, B., told the jury, ' If a person receives
a blow, and immediately avenges it with any instrument that he may
happen to have in his hand, then the offence will be only manslaughter,
provided the blow is to be attributed to the passion of anger arising from
that previous provocation ; for anger is a passion to which good and bad

(a) Mason's case, Post. 132. 1 East, (c) 1 Hawk. c. 31, s. 24.

P- C. 239. (d) 1 Hale, 457.

(6) 1 East, P. C. 239.

CHAP. I.] Provocation. 705

men are both subject. But the law requires two things : first that there
should be that provocation ; and secondly, that the fatal blow should be
clearly traced to the influence of passion arising from that provocation (e).
There is no doubt here, but that a violent assault was committed ; but the
question is, whether the blow given by the prisoner was produced by the
passion of anger excited by that assault ? If you see that a person
denotes, by the manner in which he avenges a previous blow, that he is
not excited by a sudden transport of passion, but under the influence of
that wicked disposition, that bad spirit, which the law terms " malice,"
in the definition of wilful murder, then the offence would not be man-
slaughter. Suppose, for instance, a blow were given, and the party
struck beat the other's head to pieces by continued, cruel, and repeated
blows ; then you could not attribute that act to the passion of anger,
and the offence would be murder. And so, if you find that before the
stroke is given, there is a determination to punish any man, who gives a
blow, with such an instrument as the one which the prisoner used : because
if you are satisfied that before the blow was given the prisoner meant
to give a wound with such an instrument, it is impossible to attribute
the giving such wound to the passion of anger excited by that blow ;
for no man who was under proper feelings, none but a bad man of a
wicked and cruel disposition, would really determine beforehand to resent
a blow with such an instrument ' (/).

On a trial for murder, where the deceased had died from a stab given by
the prisoner, in a contest with the deceased, Bosanquet, J., told the jury,
'■ The question for you, on a careful consideration of the whole evidence,
wiU be, whether the prisoner was guilty of either murder or manslaughter,
or whether the circumstances of the case were such as to entitle him to an
acquittal ; whether he is guilty of murder or manslaughter, or whether
his act was justifiable or excusable. Upon the question of whether it
amounts to murder you have to consider this ; did the prisoner enter
into a contest with an unarmed man, intending to avail himself of a deadly
weapon ? For if he did, it will amount to murder. But if he did not
enter into the contest with an intention of using it, then the question will
be, did he use it in the heat of passion in consequence of an attack made
upon him ? If he did, then it will be manslaughter. But there is another
question, did he use the weapon in defence of his life ? Before a person
can avail himself of that defence, he must satisfy the jury that that defence
was necessary ; that he did all he could to avoid it ; and that it was
necessary to protect his own life, or to protect himself from such serious
bodily harm as would give a reasonable apprehension that his life was in
immediate danger. If he used the weapon, having no other means of
resistance, and no means of escape, in such case, if he retreated as far as
he could, he will be justified ' (g).

This direction was followed in R. v. Symondson (h), an indictment
for manslaughter, where one of the defences was that the prisoner was
acting in defence of his own Ufe.

(e) B. V. Kirkham, 8 C. & P. 115. Cole- {g) P. v. Smith, 8 C. & P. 160, Bosan-

ridse J Cf. R. v. Eagle, 2 P. & F. 827. quet and Coltman, JJ., and BoUand, B.

(/) B. V. Thomas, 7 C. & P. 817, Parke, (h) 60 J. P. 645, Kennedy, J.
B.

VOL. I. 2 z

706 Of Homicide. [book ix.

On an indictment for murder it appeared that the prisoner and his
wife, who had been to look for him, came home about midnight ; he was
not sober, and she upbraided him for staying out so late : he took some
money out, and she said he could treat other persons and not her ; he
then took down a sword from a shelf, pulled it out of the sheath, and struck
her on the back with the flat part of it ; her daughter ran to the door ;
the mother attempted to follow her, and her daughter took hold of her
hand to pull her through ; the father, according to the daughter's first
account, went to his wife at the door, and ran the sword into her left side ;
but it appeared that she could not see the actual thrust : a wound nine
inches long was found in the left side which caused the death. She
stated in her husband's presence that he had done it with a sword. The
authorities cited ante, p. 656, having been referred to, Cresswell, J., after
referring to them said : ' This is expressed more intelligibly by Littledale,
J., who says that " malice, in its legal sense, denotes a wrongful act, done
intentionally, without just cause or excuse " (i). Therefore, if you think
the prisoner used the weapon wilfully, then that is such malice as the law
requires. The great question for your consideration is whether the wound
was given wilfully. If done by the accident of the woman rushing on the
sword, the prisoner would not be responsible. If you can find any
evidence that he used the sword carelessly, and that, without intending
to inflict a wound, he caused it, then he is guilty of manslaughter ; but if
he used it intending to inflict a wound, then he is guilty of murder. When
there is a contest the law makes great allowances for blows and a personal
encounter, but not for words (/). If, therefore, in consequence of words,
the prisoner was provoked, and intended to do the deceased a grievous
injury, that is no justification or alleviation of the offence. There is no
evidence of any conflict or of any provocation in law. If the prisoner
used the sword intending to do a serious injury, that is such evidence of
malice as the law holds to be murder. If the deceased rushed upon it,
then it was an accident, and he is not guilty. If the wound was inflicted
in a struggle without any intention on the part of the prisoner to use
it, then there was such a careless use of it as to make him guilty of
manslaughter ' (k).

Provocation will not Avail if there is time for Cooling.— In every
case of homicide upon provocation, how great the provocation may have
been, if there has been sufficient time for passion to subside and reason to
interpose, such homicide will be murder (l). Thus even where a man
finds another in the act of adultery with his wife, though it would be only
manslaughter if he should kill the adulterer in the first transport of passion,
yet if he kills him deliberately, and upon revenge after the fact and
sufficient cooling time, it would undoubtedly be murder (m). ' For let it
be observed, that in all possible cases, deliberate homicide upon a principle
of revenge is murder. No man under the protection of the law is to be
the avenger of his own wrongs. If they are of a nature for which the laws
of society will give him an adequate remedy, thither he ought to resort :

(j) See note (k), ante, p. 656. (m) Post. 296. 1 East, P. C. 234, 251

{/) Vide ante, p. 693. See ante, p. 49, and R. v. Fisher, note Iv)

{k} R. V. Noon, 6 Cox, 137. p. 702. •

(I) Fost. 296. ^

CHAP. I.] Provocation. 707

but be they of what nature soever, he ought to bear his lot with patience,
and remember that vengeance belongeth only to the Most High ' (n).
With respect to the interval of time to be allowed for passion to subside,
it is much more easy to lay down rules for determining what cases
are without the limits, than how far exactly those limits extend (o).
The immediate question is, whether the suspension of reason arising from
sudden passion continued from the time of the provocation received
to the very instant of the mortal stroke given ; for if from any circum-
stance whatever it appears that the party reflected, dehberated, or cooled
at any time before the fatal stroke was given ; or if in legal presumption
there was time or opportunity for cooling ; the killing is murder, as being
attributable to mahce and revenge, rather than to human frailty (p).
It was at one time held that the question whether the blood has had time
to cool or not was a question for the Court and not for the jury (q). But
doubt is thrown on this view by the following cases : —

On an indictment for murder, it appeared that the prisoner and the
deceased, who had been upon terms of intimacy for three or four years,
had been drinking together at a public-house till about twelve o'clock at
night ; about one they were together in the street, and had some words,
and a scuffle ensued, during which the deceased struck the prisoner in the
face with his fist, and gave him a black eye. The prisoner called for the
police, and on a policeman coming, went away ; he, however, returned
again, between five and ten minutes afterwards, and stabbed the deceased
with a knife on the left side of the abdomen : the knife, a common bread-
and-cheese knife, was one that the prisoner was in the habit of carrying
about with him, and he was rather weak in his intellect, but not so much
so as not to know right from wrong. Tenterden, C.J., said to the jury :
' It is not every shght provocation, even by a blow, which will, when the
party receiving it strikes with a deadly weapon, reduce the crime from
murder to manslaughter ; but it depends upon the time elapsing between
the blow and the injury ; and also whether the injury was inflicted
with an instrument at the moment in the possession of the party, or
whether he went to fetch it from another place. It is uncertain, in this
case, how long the prisoner was absent ; the witness says from five to ten
minutes, according to the best of his knowledge. Unless attention is
particularly called to it, it seems to me that evidence of time is very
uncertain ; the prisoner may have been absent less than five minutes ;
there is no evidence that he went anywhere for the knife. The father
says it was a knife he carried about with him ; it was a common knife,
such as a man in the prisoner's situation in life might have; for aught
that appears he might have gone a little way from the deceased and then
returned, still smarting under the blow he had received. You will also
take into consideration the previous habits and connection of the deceased
and the prisoner with respect to each other ; if there had been any old
grudge between them, then the crime which the prisoner committed
might be murder. But it seems they had been long in habits of intimacy,
and on the very night in question, about an hour before the blow, they

(») Post. 296. St. Tr. 29-48 ; 2 Str. 766.

(o) 1 East, P. C. 251. {q) B. v. Fisher, 8 C. & P. 182, Park. 3.,

[p) E. V. Oneby, 2 Ld. Baym. 1485 ; 17 Parke, B., and Law, Beoorder.

2z 2

708 Of Homicide. [book ix.

had been drinking in a friendly way together. If you think that there
was not time and interval sufficient for the passion of a man proved to
be of no very strong intellect, to cool, and for reason to regain her
dominion over his mind, then you will say that the prisoner is guilty
only of manslaughter. But if you think that the act was the act of a
wicked, malicious and diaboKcal mind (which, under the circumstances,
I should think you hardly would), then you will find him guilty of
murder ' (r).

The prisoner and the deceased, who were strangers, met at a public-
house with others, and sat there drinking and wrangKng until midnight,
when they were all turned out. In consequence of some trivial quarrel
about a game, the deceased struck the prisoner a blow on the face with
his open hand, saying, ' that if he did not like it he might return it.' The
prisoner said he was not in a fit state to fight, and the men stood wrang-
ling some interval of time, which was described by some of the witnesses
as ' about ten minutes.' Then the two men shook hands and parted,
the prisoner going towards home. When he had gone about thirty
yards he stopped, turned round, and cried out, ' Now I am on the high-
way ; if anybody wants anything I am ready for him.' The deceased
appeared to have taken this as a kind of challenge to himself, and at
all events accepted it as such, and went after the prisoner, who had stood
still. Almost immediately afterwards the deceased was heard to cry out,
' I am stabbed,' and was found lying on the ground, his jacket off, and in
the hands of the prisoner who was standing by ; and a mortal wound in
his abdomen, which was no doubt inflicted by the prisoner, who said, ' I
shouldn't have done it if he hadn't hit me on the face.' When the dying
deposition of deceased was taken, he declared that on the second occasion
he had not struck the prisoner ; and when the prisoner said to him,
' Didn't you knock me down ? ' the dying man denied it. Hannen, J.,
in the course of his summing up to the jury, said : ' In the present instance
the evidence as to the time which had elapsed is left in some uncertainty ;
but several witnesses say it was " about ten minutes." It is for you to
form your own conclusion as to what took place in the interval, as to
which you can only draw inferences from the circimistances ; and though
there is no express evidence of a renewal of the aggression on the part of
the deceased (and the evidence is rather against the supposition, especially
as the prisoner did not accuse him of it at the time), it is beyond a doubt
that he followed the prisoner with the intention of renewing the attack,
and his jacket was found off. It is for you to draw such inferences from
this as you think warranted by the evidence. If you come to the con-
clusion that the prisoner, after the blow had been given, had time for
his blood to cool, and that when he stopped on the road he had the inten-
tion in his mind to use the knife in the event of the deceased following
him, and uttered the words he used with the object of inducing the
deceased to follow him, there would be evidence of implied malice to
sustain the charge of murder. But if you come to the conclusion that
the prisoner had not such intention in his mind, and that he did not utter
the words with such intention, that they were idle words of bravado,

(r) R. V. Lynch, 5 C. & P. 324.

CHAP. I.] Provocation. 709

not of challenge, and that he used the knife on some fresh and sudden
provocation, ensuing from the deceased following him and renewing
the assault upon him, then there is evidence to reduce the crime to
manslaughter ' (s).

The deceased was requested by his mother to turn the prisoner out
of her house, which after a short struggle with the prisoner he effected,
and in doing so he gave him one kick. The prisoner said he would make
him remember it, and instantly went to his own lodgings, from two to
three hundred yards distant, passed through his bedroom and a kitchen
into a pantry, and returned thence hastily back again. Within five
minutes after the prisoner had left the deceased, the latter followed him
to give him back his hat, which had been left behind, and they met about
ten yards from the prisoner's lodgings. They stopped for a short time,
when they were heard talking together, but without any words of anger ;
after they had walked on together for about fifteen yards, the deceased
gave the prisoner his hat, when the latter exclaimed with an oath, that
he would have his rights, and instantly stabbed the deceased with a knife
or some sharp instrument, in two places, giving him a mortal wound.
As soon as he had stabbed him the second time, he said he had served
him right, and instantly ran back to his lodgings, passed hastily through
his bedroom and the kitchen to the pantry, and thence back to his bed-
room, where he undressed himself and went to bed. Shortly afterwards
he was apprehended, and no knife or other instrument found upon him.
In the pantry the prisoner had four. The several knives were found the
next morning in their usual places in the pantry, Tindal, C.J., told
the jury that the question for them was, whether the wound was given
by the prisoner while smarting under a provocation so recent and so strong
that the prisoner might not be considered at the moment the master of
his own understanding : or whether there had been time for the blood
to cool, and for reason to resume its seat, before the wound was given.
That in determining this question, the most favourable circumstance
for the prisoner was the shortness of time between the original quarrel
and the stabbing ; but, on the other hand, the weapon was not at hand
when the quarrrel took place, but was sought for from a distant place.
It would be for them to say whether the prisoner had shewn thought,
contrivance, and design in the mode of possessing himself of the weapon,
and again replacing it immediately after the blow was struck ; for the
exercise of contrivance and design denoted rather the presence of
judgment and reason than of violent and ungovernable passion (t).

From the cases which have been stated in the former part of this

section, it appears that malice will be presumed, even though the act be

perpetrated recently after the provocation received, if the instrument or

manner of retaliation be greatly inadequate to the offence given, and

cruel and dangerous in its nature ; for the law supposes that a party

capable of acting in so outrageous a manner upon a slight provocation

must have entertained a general, if not a particular malice, and have

previously determined to inflict such vengeance upon any pretence that

offered (m).

(s) R. V. Selten, 11 Cox, 674. (a) 1 East. P. C. 252.

(t) R. V. Hay ward, 6 C. & P. 157.

710 Of Homicide. [book ix.

Sect. VII.— Mutual Combat («).

Where words of reproach or other sudden provocations have led
to blows and mutual combat, and death has ensued, the important
question is, whether the occasion was altogether sudden, and not the
result of preconceived anger or malice ; for the killing, though in mutual
combat, will not admit of alleviation, if the fighting were upon malice (w).

Thus a person who killed another in a deliberate duel is guilty of
murder ; for wherever two in cold blood meet and fight on a precedent
quarrel, and one of them is killed, the other is guilty of murder (x),
and cannot extenuate the killing by alleging that he was first struck by
the deceased ; or that he had often declined to meet him, and was
prevailed upon to do it by his importunity ; or that it was his intent only
to vindicate his reputation {y) ; or that he meant not to kill, but only to
disarm his adversary (2). He was deliberately engaged in an act, highly
unlawful, in defiance of the law, and he must at his peril abide the con-
sequences. Upon this principle, wherever two persons quarrel overnight
and appoint to fight the next day, or quarrel in the morning and agree to
fight in the afternoon, or at any time afterwards so considerable that
in common intendment it must be presumed that the blood was cooled,
the person killing will be guilty of murder {a). And where, upon a quarrel
happening at a tavern, M. objected to fighting at that time, on account of
the disadvantage he should have by reason of the height of his shoes, and
presently afterwards went into a field and fought, the circumstance was
relied on as shewing that he did not fight in the first passion (&). So
wherever there is an act of deliberation, and a meeting by compact, such
mutual combat will not excuse the party killing from the guilt of murder ;
as where B. challenged A., and A. refused to meet him, but in order to
evade the law, told B. that he should go the next day to a certain town
about his business, and accordingly B. met him the next day in the road
to the same town and assaulted him, whereupon they fought, and A.
killed B., it is said that A. seems guilty of murder ; but the same con-
clusion would not follow, if it should appear by the whole circumstances
that he gave B. such information accidentally, and not with a design to
give him an opportunity of fighting (c). Upon the same principle, if A.
and B. meet deliberately to fight, and A. strikes B., and pursues B. so
closely that B., in safeguard of his own life, kills A., this is murder in B. ;
because their meeting was a compact, and an act of deliberation, in
pursuance of which all that follows is presumed to be done {d).

(v) Many of the earlier cases under this (a) ] Hawk. 0. 31, s. 22. 1 Hale, 453.

head were decided by reference to what (6) Bromwich's case, 1 Lev. 180. 1 Sid.

was called chance medley or chaude m.eUe. 277. 82 E. R. 11 03. Bromwioh was in-

See 22 Hen. VIII. c. 14, s. 4, repealed in dieted for aiding and abetting Lord Morley

1828 by 9 Geo. IV. c. 31. 1 Hawk. c. 30, in the murder of Hastin<^s.
s. 1. Fost. 275. 1 Hale, 453. (c) 1 Hawk. e. 31, s. 25.

(w) 1 East, P. C. 241. (d) 1 Hale, 452, 480, who says, ' Thus is

(x) B. V. Young, 8 C. & P. 644, Vaughan, Mr. Dalton, c. 93, p. 241 (new ed. c. 145,

J., and Alderson, B. R. 0. Cuddy, 1 C. & p. 471) to be understood.' But a qucere is

K. 210. Barronet's case, 1 E. & B. 1. added in 1 Hale, 462, whether if B. had

{y) As where he had been threatened really and truly declined the fight, run

that he should be posted for a coward. 1 away as far as he could, and offered to

Hale, 452, and see R. v. Rice, 3 East, 581. yield, and yet A., refusing to dechne it,

(z) 1 Hawk. c. 31, s. 21. had attempted his death, and B. after this

CHAP. I.] Mutual Combat 711

Not only the principal in a duel in cold blood who actually kills the
other, but also his second, and the second of the person killed are guilty
of murder (e). On an indictment charging M. with the murder of F. and,
the prisoner as present, aiding and assisting in the murder, the death was
shewn to have occurred in a duel, in which M. was one of the principals and
the prisoner was said to have acted as second to the deceased. The jury
were directed that where two persons go out to fight a deliberate duel,
and death ensues, all persons who are present on the occasion, encouraging
or promoting the death, will be guilty of abetting the principal offender,
and that, without giving them any particular name, all persons who were
present aiding, assisting, and abetting that deHberate duel were within
the terms of the indictment (/).

Mere presence is not sufficient ; but if those present sustain the
principals by their advice or presence, or if they go for the purpose of
encouraging and forwarding the unlawful conflict, although they do not
say or do anything, yet if they are present and assisting and encouraging
at the moment when the pistol is fired, they are guilty of murder (g).

If, upon a sudden quarrel, the parties fight upon the spot, or if they
presently fetch their weapons, and go into a field and fight, and one of them
is killed, it will be but manslaughter, because it may be presumed that the
blood never cooled {h). And it has been observed, with regard to sudden
rencounters, that when they are begun, the blood, previously too much
heated, kindles afresh at every pass or blow ; and in the tumult of the
passions, in which mere instinct, self-preservation, has no inconsiderable
share, the voice of reason is not heard : therefore the law, in condescension
to the infirmities of flesh and blood, has extenuated the offence (^).

P. with one party, and W. with another party, dined at a tavern ;
and on coming out P. and W. quarrelled and drew their swords, and W.
ran P. through the body, and he died. There was no evidence of any
unfair advantage taken by W. ; nor could the witnesses say more than
that they heard them quarrelling, saw their swords drawn, and the
sword through P.'s body ; and it appeared that the parties did not know
each other before. When P. fell, W. took him by the nape of the neck,

had killed A. in his own defence, it would necessity in self-defence, because the neces-

excuse him from the guilt of murder ; ad- sity which was induced from his own faulty

mitting clearly that if the running away and illegal act, namely, the agreement to

were only a pretence to save his own life, fight, was in the first instance deliberately

but was really designed to draw out A, to foreseen and resolved upon, in defiance of

kill him, it would be murder. This qucere the law.' 1 East, P. C. 285.

of Hale's is discussed in 1 East, P. C. 284, (e) 1 Hale, 442, 453. 1 Hawk. c. 31,

et seq., and it is observed that Blackstone s. 31. R. v. Young, 8 C. & P. 641, Vaughau

(4 Bl. Com. 185) expressly puts the same J., and Alderson, B. Hale (1 P. C. 443,

case of a duel as Hale, but without sub- 453), referring to 22 Edw. III. Coron. 262,

joining the game doubt ; and that it was considered that the law was strained too

considered as settled law in Major Oneby's far in the case of the second of the person

case. 2 Str. 766 ; 17 St. Tr. 29 ; 2 Ld. killed.

Raym. 1485, 1489. East, after reasoning (/ ) R. v. Cuddy, 1 C. & K. 210, Williams,

in favour of the extenuation of the crime J., and Rolfe, B.

of the duelhst so declining to fight, proceeds (q) R. v. Young, supra. Cf. R. v. Coney,

thus: ' Yet still it may be doubtful whether, 8 Q.B.D. 534.

admitting the full force of this reasoning, (h) 1 Hale, 453. 1 Hawk. c. 31, s. 29.

the offence can be less than manslaughter, 3 Co. Inst. 51.

or whether in such case the party can alto- (i) Post. 138, 296.

gether excuse himself upon the foot of

712 Of Homicide. [bookix.

dashed his head upon the ground, and said, ' Damn you, you are dead ! '
Jenner, B., told the jury that this was only manslaughter : the jury,
however, were disposed to find it murder, because of the dashing the head
against the ground, &c. : but Allibone, J., repeated to them that it was
manslaughter only, and they found accordingly (/).

B. and C. differed at a club as to the best means of procuring game.

C. said, ' If you have anything more to say, you will find me in Berkeley
Row/ The conversation then dropped, and they stayed together at
least half an hour ; and B. during that time conversed with a gentleman
who sat next him : C. settled the bill, but made a mistake which might
arise from agitation. C. then went out, and D. followed him, of whom C.
asked if he had been short with B. in what he said last to him ; to which

D. answered, ' No.' B. then came out and said to C, ' I want to speak
to you ' ; upon which they both called the waiter, and were shewn into a
small room, and the waiter left a candle in the room. B. asked C. if he
meant the conversation upon game to Sir C. or to him ; upon which C,
said, ' If you have anything to say we had better shut the door, or we
shall be heard,' and he shut the door. On turning from the door he saw
B.'s sword half drawn, and B. said, ' Draw, draw ! ' C. drew, and thrust
at B. ; and after one or two thrusts, C. received a mortal wound, of which
he died. An indictment was preferred for murder ; but upon the trial
the peers (123) were unanimous that it was manslaughter only (k).

The deceased, a French prisoner, had stolen a tobacco-box from one of
a party of French prisoners who were gambling, and was chastised by
some of the party for his conduct, and a clamour was raised against him.
As he passed the prisoner, who was sitting at a table and much
intoxicated, the prisoner got up, and with great force pushed the deceased
backwards upon the ground. The deceased got up again and struck the
prisoner two or three blows with his doubled fist in the face, and one blow
in the eye ; upon which the prisoner pushed the deceased backwards
again in the same manner, and gave him, as he lay on his back upon the
ground, two or three stamps with great force with his right foot on the
stomach and belly ; and afterwards, when the deceased arose on his seat
and was sitting, gave him a strong kick in the face ; the blood came out
of the mouth and nose of the deceased, and he fell backwards, and died
on the next day. The stamps upon the stomach and belly were the cause
of his death. The prisoner was convicted of murder, on the ground that
the violence which caused the death was not excused by heat of blood :
but on a case reserved the offence was held to be manslaughter only [l).

If A. uses provoking language or behaviour towards B., and B. strikes
him, upon which a combat ensues, in which A is killed, this is man-
slaughter ; for the affray was sudden and the fight upon equal terms ;
and in combats, upon sudden quarrels, it matters not who gave the first
blow [m). But even in such cases malice may be inferred. Yet if the
party killing began the attack with circumstances of undue advantage (n).
The party assaulted must be put on an equal footing in point of

(j) R. V. Walters, 12 St. Tr. 113. Bayley, J.
(k) R. V. Lord Byron [1765], 19 St. Tr. (to) Fost. 295. 1 Hale, 450.

1177. (n) Fost. 295.

(I) R. V. Aves, R. & R. 166, and MS.

CHAP. I.] Mutual Combat. 713

defence ; at least at the onset ; and this more particularly where the
attack is made with deadly or dangerous weapons (o). Thus if B. draw
his sword and make a pass at A., the sword of A. being then undrawn,
and thereupon A. draw his sword and a combat ensue, in which A. is
killed, this will be murder ; for B., by making the pass, while his adver-
sary's sword was undrawn, shews that he sought his blood : and A/s
endeavour to defend himself, which he had a right to do, will not excuse
B. (p) ; but if B. had forborne till his adversary had drawn too it had been
no more than manslaughter (q).

In Mawgridge's case (r), words of anger happening, M. threw a bottle
with great force at the head of C, and immediately drew his sword. C.
returned a bottle at the head of M., and wounded him ; whereupon M.
stabbed C. This was ruled to be murder ; for M., in throwing the bottle,
shewed an intention to do some great mischief ; and his drawing im-
mediately shewed that he intended to follow his blow ; and it was lawful
for C, being so assaulted, to return the bottle.

Even if the parties are upon an equal footing when the combat begins,
malice may be implied from the violent conduct which the party killing
pursued in the first instance ; more especially where there is time for
cooling, and such expressions are used as manifest deliberation ; as in
the case of Major Oneby (s).

He was indicted for the murder of G. ; and a special verdict was
found, containing the following statement. The prisoner being in
company with the deceased and three other persons at a tavern, in a
friendly manner, after some time, began playing at hazard ; when R.,
one of the company, asked if one would set him three half-crowns ;
whereupon the deceased, in a jocular manner, laid down three half-pence,
telling R. he had set him three pieces ; and the prisoner at the same time
set R. three half-crowns, and lost them to him. Immediately after which,
in an angry manner, he turned about to the deceased, and said, it was
an impertinent thing to set half-pence, and that he was an imper-
tinent puppy for so doing, to which the deceased answered, whoever caUed
him so was a rascal. Thereupon the prisoner took up a bottle, and with
great force threw it at the deceased's head ; but did not hit him, the
bottle only brushing some of the powder out of his hair. The deceased
in return immediately tossed a candlestick or bottle at the prisoner,
which missed him ; upon which they both rose up to fetch their swords,
which then hung up in the room, and the deceased drew his sword ;
but the prisoner was prevented from drawing his by the company.
The deceased thereupon threw away his sword ; and the company
interposing, they sat down again for the space of an hour. At the
expiration of that time the deceased said to the prisoner : ' We have
had hot words, but you were the aggressor ; but I think we may pass it
over ' ; and at the same time offered his hand to the prisoner, who made

(o) 1 East. P. C. 242. this case was holden to be good law by all

(p) Fost. 295. 1 Hawk. o. 31, s. 27. the judges of England, at a conference in

(fl) 1 Hawk. 0. 31, s. 28. Fost. 295. the case of Major Oneby, infra,

(r) R. V. Mawgridge, Kel. (J) 119, 128, (s) 2 Str. 766 ; 2 Ld. Eaym. 1485 ; 17

129. 1 East, P. C. 276 ; cited in Fost. 295, St. Tr. 29.

296, where it is said that the judgment in

714 Of Homicide. [book ix.

answer, ' No, damn you ; I will have your blood.' After which, the
reckoning being paid, all the company, except the prisoner, went out of
the room to go home ; and he called to the deceased, saying, ' Young man !
come back ; I have something to say to you ' ; whereupon the deceased
returned into the room, and the door was closed, and the rest of the com-
pany excluded ; but they heard a clashing of swords, and the prisoner
gave the deceased the mortal wound. It was also found, that at the
breaking up of the company the prisoner had his great coat thrown over
his shoulders, and that he received three slight wounds in the fight ; and
that the deceased, being asked upon his death-bed, whether he received
his wound in a manner among sword-men called fair, answered, ' I think
I did.' It was further found that, from the throwing of the bottle, there
was no reconcihation between the prisoner and the deceased. Upon
these facts all the judges were of opinion that the prisoner was guilty of
murder ; he having acted upon mahce and deliberation, and not from
sudden passion. It should probably be taken, upon the facts found in
the verdict and the opinion of the Chief Justice, that, after the door had
been shut, the parties were upon an equal footing in point of preparation
before the fight began in which the mortal wound was given. The main
point then on which the judgment turned, was the evidence of express
malice, after the interposition of the company, and that the parties had
all sat down again for an hour. Under those circumstances the Court
were of opinion that the prisoner had had reasonable time for cooling ;
after which, upon an offer of reconciliation from the deceased, he had
made use of that bitter and deliberate expression, that he would have
his blood. And again, the prisoner remained in the room after the rest
of the company retired, and calling back the deceased by the contemp-
tuous appellation of young man, on pretence of having something to say
to him, altogether shewed such strong proof of deliberation and coolness
as precluded the presumption of passion having continued down to the
time of the mortal stroke. Though even that would not have availed the
prisoner under these circumstances ; for it must have been implied,
according to Mawgridge's case, that he acted upon malice; having in the
first instance, before any provocation received, and without warning or
giving time for preparation on the part of G., made a deadly assault
upon him.

If, after an interchange of blows on equal terms, one of the parties,
suddenly, and without any such intention at the commencement of the
affray, snatches up a deadly weapon and kills the other party with it,
such killing will be only manslaughter. But if a party, under colour
of fighting upon equal terms, uses from the beginning of the contest a
deadly weapon without the knowledge of the other party, and kills
the other party with such weapon ; or if, at the beginning of the contest
he prepares a deadly weapon, so as to have the power of using it in
some part of the contest, and uses it accordingly in the course of the
combat, and kills the other party with the weapon ; the kiUing in both
these cases will be murder. The prisoner and L. quarrelled and went
out to fight. After two rounds, which occupied little more than two
minutes, L. was found to be stabbed in a great many places ; and of
one of those stabs he almost instantly died. It appeared that nobody

CHAP, n Mutual Combat. 715

could have stabbed him but the prisoner, who had a clasped knife before
the affray. Bayley, J., told the jury, that if the prisoner used the knife
privately from the beginning ; or if before they began to fight he placed
the knife so that he might use it during the affray, and used it accord-
ingly, it was murder ; but that if he took to the knife after the fight
began, and without having placed it to be ready during the affray, it
was only manslaughter. The jury found the prisoner guilty of murder (t).

Upon an indictment for maliciously cutting, it appeared that the
prisoner had cut the prosecutor in a fight that took place between them, but
no instrument was seen either before or at the time in the prisoner's hands ;
Bayley, J., said : ' When persons fight on fair terms, and merely with
fists, where life is not likely to be at hazard, and the blows passing between
them are not likely to cause death, if death ensues, it is manslaughter ;
and if persons meet originally on fair terms, and after an interval, blows
having been given, a party draws in the heat of blood a deadly instrument,
and inflicts a deadly injury, it is manslaughter only. But if a party
enters into a contest dangerously armed, and fights under an unfair
advantage, though mutual blows pass, it is not manslaughter, but murder.
If you are of opinion that the prisoner entered into the contest, being
unduly armed with an instrument calculated to produce the effects charged
in the indictment, and with the instrument ready in this hand, in order
that he might resort to it with any of the alleged intents, then he is guilty.
For if death had ensued it would have been murder ' (u).

J. T., a Scotch soldier, and two other Scotchmen, were drinking
together in an alehouse, when some servants to the owner of the house, who
were also drinking in another box, abused the Scotch nation, and used
several provoking expressions towards T. and his company, on which T.
struck one of the servants with a small rattan cane, not bigger than a man's
little finger, and another of the Scotchmen struck the same servant with
his fist ; the servant who was struck went out of the room into the yard,
to fetch his fellow-servants to turn T. and his company out of the room ;
and, in the meantime, an altercation ensued between T. and the deceased,
who was the owner of the house, but not the occupier, and who had come
into the room after the servant went into the yard. He insisted that
T. should pay for his liquor and go out of the house ; and T., after some
further altercation, was going away, when the deceased laid hold of him
by the collar, and said he should not go away till he had paid for the
liquor ; and then threw him down against a settle. T. then paid for
the liquor ; whereupon the deceased laid hold of him again by the collar,
and shoved him out of the room into the passage; and T. then said
that he did not mind kiUing an EngUshman more than eating a mess
of crowdy. The servant, who had been originally struck with the cane,
then came and assisted the deceased, who had hold of T.'s collar ; and
together they violently pushed him out of the door of the alehoirse ;
whereupon T. instantly turned round, drew his sword, and gave the
deceased the mortal wound. This was adjudged manslaughter {v).

{t) E. V. Anderson, 0. B. December, {u) B. v. Whiteley, 1 Lew. 173, Bay-

1816. Richards, B., and the Recorder, ley, .J.

thought the direction right. MS. Bayley, (v) R. v. Taylor, 5 Burr. 2793, an appeal

J. See R. V. Kessal, 1 C. & P. 437, 1 East, of murder. 1 Hawk. c. 31, s. 39.
P. C. 243.

716 Of Homicide. LBOOK ix.

The prisoner, a shoemaker, lived near the deceased. One afternoon
the prisoner, very drunk, passed accidentally by the house of the deceased's
mother, while the deceased was thatching an adjacent barn. They
entered into conversation ; but on the prisoner's abusing the mother and
sister of the deceased, very high words arose on both sides, and they
placed themselves in a posture to fight. The mother of the deceased,
hearing them quarrel, came out of her house, threw water over the prisoner,
hit him in the face with her hand, and prevented them from boxing.
The prisoner went into his own house ; and in a few minutes came out
again, and sat himself down upon a bench before his garden gate, at a
small distance from the door of his house, with a shoemaker's knife in
his hand, with which he was cutting the heel of a shoe. The deceased,
having finished his thatching, was returning, in his way home, by the
prisoner's house ; and on passing the prisoner, as he sat on the bench,
the deceased called out to him, ' Are not you an aggravating rascal ? '
The prisoner replied, ' What will you be, when you are got from your
master's feet ? ' On which the deceased seized the prisoner by the collar,
and dragging him off the bench, they both rolled down into the cartway.
While they were struggling and fighting, the prisoner underneath, and
the deceased upon him, the deceased cried out, ' You rogue, what do you
do with that knife in your hand ? ' and made an attempt to secure it ;
but the prisoner kept striking about with one hand, and held the deceased
so hard with the other hand, that the deceased could not disengage him-
self. He made, however, a vigorous effort, and by that means drew the
prisoner from the ground ; and during this struggle the prisoner gave a
blow, on which the deceased immediately exclaimed, ' The rogue has
stabbed me to the heart ; I am a dead man ' ; and expired. Upon
inspection, it appeared that he had received three wounds, one very small
on the right breast ; another on the left thigh, two inches deep, and
half an inch wide ; and the mortal wound on the left breast. The jury
found implied malice, and convicted of murder. But on a case reserved
the judges seem to have thought that there was not sufi&cient evidence
that the prisoner lay in wait for the deceased, with a malicious design to
provoke him, and under that colour, to revenge his former quarrel, by
stabbing him, which would have made it murder. On the contrary,
he had composed himself to work at his own door, in a summer's evening ;
and when the deceased passed by, neither provoked him by word nor
gesture. The deceased began first by ill language, and afterwards by
collaring and dragging him from his seat, and rolling him in the road.
The knife was used openly before the deceased came by, and not con-
cealed from the bystanders ; though the deceased in his passion did not
perceive it till they were both down. And though the prisoner was not
justifiable in using such a weapon on such an occasion, yet it being
already in his hand, and the attack upon him very violent and sudden,
the judges thought that the offence only amounted to manslaughter (w).

Upon an indictment for maliciously cutting, it appeared that a quarrel
arose between the prisoner and the prosecutor, both being intoxicated ;
the prosecutor struck the first blow, and they fought for a few minutes,

(til) R. V. Snow, 1 Leach, 151 ; 1 East, P. C. 245, citing Serjeant Foster's MS.

CHAP. I.] Mutual Combat. 717

when the prisoner ran back a short distance, and the prosecutor pursued,
and overtook him, on which the prisoner, who had taken out his knife in
his retreat, gave the prosecutor a ciit across the abdomen. J. A. Park, J.,
said : ' The question I shall leave to the jury is this, whether the prisoner
ran back with a malicious intention of getting out his knife to inflict an
injury on the prosecutor, and so to gain an advantage in the conflict ?
For if he did, notwithstanding the previous fighting between them on
equal terms, and the prosecutor having struck the first blow, I am of
opinion that if death had ensued, the crime would have been murder ; or
whether the prisoner, hona fide, ran away from the prosecutor with
intention to escape from an adversary of superior strength, but finding
himself pursued, drew his knife to defend himself ? As in this latter case,
if the prosecutor had been killed, the crime would have been manslaughter
only' {x).

Upon an indictment for manslaughter the evidence was that the
prisoner and deceased were ' fighting up and down,' and that the deceased
died of the injury he sustained in the fight. Bayley, J., to the jury,
' Fighting up and down is calculated to produce death, and the foot is
an instrument likely to produce death. If death happens in a fight of
that description it is murder, and not manslaughter.' The prisoner
having been convicted, Bayley, J., told him that if he had been
charged with murder, the evidence adduced would have sustained the
indictment (y).

Though, where there has been an old quarrel between A. and B., and
a reconciliation between them, and afterwards, upon a new and sudden
falling out, A. kills B., this is not murder ; yet if upon the circumstances
it appears that the reconcihation was but pretended or counterfeit,
and that the hurt done was upon the score of the old malice, it is
murder (z).

On an indictment for manslaughter it appeared that the prisoner,
a blind man, and the deceased were at a public-house, and a dispute arose
between them. The prisoner went to lay hold of the deceased, who
pushed him away ; they then got hold of each other and there was a
struggle, and they pushed about from one side to another ; no blows
were struck, but there were three falls, and the deceased fell undermost
each time, and the third time the prisoner's knees came upon the lower
part of the stomach of the deceased, and ruptured the intestines, which
rupture caused the death. Patteson, J., told the jury that ' All struggles
in anger, whether by fighting, or wrestling, or any other mode — all kinds
of contests in anger, are unlawful. And if you think the deceased's
death was occasioned by an act of the prisoner in the struggle of that
kind, I cannot tell you that it does not amount to manslaughter. If the
prisoner was struggling, but did not attempt to throw him, I should tell
you it is not a case of manslaughter ; but it is for you to say whether
that is the fact or not. If the prisoner laid hold of the deceased in anger,

(x) R. V. Kessal, 1 C. & P. 437. R. Ev. (13th ed.) 634, as ' a brutal and savage

V. Taylor and R. v. Snow, supra, had been practice in the north of England, as late as

cited for the prisoner. 1835.'

(5^) R. V. Thorpe, 1 Lew. 171. ' Kghting (z) 1 Hale, 452. 1 Hawk. c. 31, s. 30.

up and down ' is described in Rosooe Cr.

718 Of Homicide. [book ix.

and struggled with him and threw him, then it is a case of manslaughter.
If you can collect from the circumstances that the prisoner was pulled
down against his will, and, in consequence, fell upon the deceased, then he
will not be guilty. But there does not seem anything in the evidence to
shew that the prisoner evinced any disposition to give up the contest ;
on the contrary, it appears that the contest was continued till the fall,
which occasioned the death. You have been told by the counsel for the
prisoner that you must be satisfied that the death was occasioned by the
wilful act of the prisoner. In one sense of the word " wilful " I agree with
him. I take it for granted he does not mean by it malicious or intending
to do injury, but that it must be an act of the will, and that it must be
shewn that the prisoner attempted to throw the deceased. They had
no right to struggle in this way ; if it had been an amicable contest in
wrestling, to see who was the best man, that would be quite a different
matter ' (a).

A man seems to be guilty of manslaughter, who, seeing two persons
fighting together on a private quarrel, whether sudden or malicious,
takes part with one of them, and kills the other (6). If a master, mali-
ciously intending to kill another, takes his servants with him without
acquainting them with his purpose, and meets his adversary, and fights
with him, and the servants, seeing their master engaged, take part with
him, and kill the other, they would be guilty of manslaughter only,
though the master would be (it seems) guUty of murder (c). From this
it follows, a fortiori, that if a servant or friend, or even a stranger, coming
suddenly, and seeing A. fighting with another man, sides with A., and
kills the other man, or seeing A.'s sword broken sends him another,
wherewith he kills the other man, such servant, friend, or stranger will be
only guilty of manslaughter {d). But this supposes that the person inter-
fering does not know that the fighting is upon malice ; for though if A.
and B. fight upon malice, and C, the friend or servant of A., not being
acquainted therewith, comes in and takes part against B., and kills him.
this (though murder in A.) is only manslaughter in C. ; yet it would be
otherwise, if C. had known that the fighting was upon malice, for then it
would be murder in both. If A., having been assaulted, retreats as far
as he can, and then his servant kills the assailant, it will be only homicide
se defendendo ; but if the servant had killed him before the master had
retreated as far as he could, it would have been manslaughter in the
servant. The law is the same in the case of the master killing a man in
defence of the servant (e).

Where F. C. and 0. were in a field fighting upon a quarrel, and M. C.
casually riding by, and seeing them in fight, and his kinsmen one of them,
rode in, drew his sword, thrust 0. through and killed him ; Coke, C.J.,
and the rest of the Court agreed that this was clearly but manslaughter in

(a) R. V. Canniff, 9 C. & P. 359. there cited. 1 Hale, 484. Plowd. 100 a

(6) 1 Hawk. 0. 31, 3. 35. 76 E. R. 158. So Tremin says that a ser-

E. V. Salisbury, Plowd. 100 a. 75 E. B. master, if he cannot otherwise escape

158. Y. B. 21 H. vii. v. 39. Plowd. 100. 1 Ms'

{d) Hawk c. 31, s. 56 .1 East, P. 0. 290. Sum.
(e) 1 East, P. C. 292, and the authorities

CHAP. L] Mutual Combat. 719

him, and murder in the other ; for the one may have malice and the other
not ; he may come in by chance, and so kill the other (/).

If two persons are fighting, and another interferes with intent to part
them, but does not signify such intent, and is killed by one of the com-
batants, this is but manslaughter (g). And if a third person takes up the
cause of one who has been worsted in mutual combat, and attacks the
conqueror, and is killed by him, the killing would, it seems, be man-
slaughter. A. and B. were walking together in Fleet-street, and B. gave
some provoking language to A., who, thereupon, gave B. a box on the ear,
upon which they closed, and B. was thrown down, and his arm broken.
Presently B. ran to his brother's house, which was hard by ; and C, his
brother, taking the alarm, came out with his sword drawn, and made
towards A., who retreated ten or twelve yards ; and C. pursuing him, A.
drew his sword, made a pass at C, and killed him. On an indictment of
A. for murder the jury were directed to find it manslaughter, because
it was upon a sudden falling out, not se defendendo, partly because A.
made the first breach of the peace by striking B. ; and partly because,
unless he had fled as far as might be, it could not be said to be in his
own defence ; and it appeared plainly upon the evidence, that he might
have retreated out of danger, and that his stepping back was rather to
have an opportunity to draw his sword, and with more advantage to
come upon C., than to avoid him ; and accordingly, at last, it was found
manslaughter {h).

Upon an indictment for wounding (under 9 Geo. IV. c. 31) (rep.), it
appeared that the prisoner and the prosecutor's brother were fighting,
and the prosecutor laid hold of the prisoner in order to prevent him from
beating his brother, and held him down on a locker, but did not strike
him, and the prisoner then stabbed him. Park, J., directed the jury, that
if they were of opinion that the prosecutor did nothing more than was
necessary to prevent the prisoner from beating his brother, the crime,
if death had ensued, would have been murder ; but if they thought that
the prosecutor did more than was necessary to prevent the prisoner from
beating the brother, or that he struck any blows, then it would have been
manslaughter (^).

A party of men were playing at bowls, when two of them fell out and
quarrelled ; and a third man who had not any quarrel, in revenge of his
friend, struck the other with a bowl, of which blow he died. This was
held manslaughter, because it happened upon a sudden motion in revenge
of his friend (/). The two men who fell out were actually fighting together
at the time ; for if words only had passed between them, it would have
been murder ; nothing but an open affray of striving being such a provo-
cation to one person to meddle with an injury done to another as will
lessen the offence to manslaughter, if a man is killed by the person so
meddling (k).

Though Hale and others appear sometimes to draw a distinction

if) R. V. Gary, 3 Bulst. 206: S. C. 1 (i) K. v. Bourne, 5 C. & P. 120.

Roile, R. 407, aa B. v. Carew. (?) 12 Co. Rep. 87.

(g) 1 Bast, P. C. 292. Kel. (J.) 66. {k) See the opinion of the judges m R.

ih) 1 Hale, 483. A case at Newgate, v. Huggett, Kel. (J.) 59, and 1 East, P. C.

1671. 328, 329.

720 Of Homicide. [book ix.

between the interference of servants and friends, and that of a mere
stranger, yet the limits of such distinction do not appear to be anywhere
actually defined. And the nearer or more remote connection of the
parties with each other seems to be more a matter of observation to the
jury as to the probable force of the provocation, and the motive which
induced the interference, than as furnishing any precise rule of law (Z).

As a blow aimed with malice at A., and by mistake or accident falling
upon B. and killing him, is murder (m) ; so if a blow aimed at A. and
lighting on B. was given in such a transport of sudden passion as, in case A.
had died by it, would have reduced the offence to manslaughter, this
extenuation applies equally if the blow should happen to kill B. {n).

A widow finding that one of her sons had not prepared her dinner
as she had directed him to do, began to scold him, upon which he made
her some very impertinent answers, which put her in a passion, and she
took up a small piece of iron used as a poker, intending to frighten him,
and seeing she was very angry he ran towards the door of the room,
when she threw the poker at him, and it happened that the deceased was
just coming in at the moment, and the iron struck him on the head, and
caused his death. Park, J., told the jury, ' No doubt this poor woman had
no more intention of injuring this particular child than I have, but that
makes no difference in law. If a blow is aimed at an individual unlawfully
— and this was undoubtedly unlawful, as an improper mode of correction
— and strikes another and kills him, it is manslaughter, and there is no
doubt, if the child at whom the blow was aimed had been struck, and
died, it would have been manslaughter, and so it is under the present
circumstances ' (o).

A quarrel arose between some soldiers and a number of keehnen;
and a violent affray ensuing, one of the soldiers was stripped, and cruelly
beaten. The prisoner, who was a soldier, had before driven part of the
mob down the street with his sword in the scabbard ; and on his return,
seeing his comrade thus used, drew his sword, and bid the mob stand
clear, saying, he would sweep the street ; and, on their pressing on him,
he struck at them with the fiat side of the sword several times ; upon
which they fled, and he pursued them. The soldier who was stripped
got up, and ran into a passage to save himself. The prisoner returned,
and asked if they had murdered his comrade ; and the people came back,
and assaulted him several times, and then ran from him. He sometimes
brandished his sword ; and then struck fire with the blade of it upon the
stones of the street, calling out to the people to keep off. At this time
the deceased, who had a blue jacket on, and might be mistaken for a
keelman, was going along about five yards from the soldier ; but, before
he passed, the soldier went to him and struck him on the head with his
sword, of which blow he almost immediately expired. It was the opinion
of two witnesses that, if the soldier had not drawn his sword, they
would both of them have been murdered. The offence was ruled to be
manslaughter (p).

(I) X East, P. 0. 292. Gaselee, JJ.

(m) Post, p. 755. (p) R. v. Brown, 1 Leach, 148. 1 East,

(n) Post. 262. P. C. 245, 246.

(o) E. V. Conner, 7 C. & P. 438, Park and

CHAP. 1] Of Resistance to the Law. 721

Sect. VIII. — Of Resistance to Officers of Justice, to Persons

ACTING IN THEIR AlD, AND TO PRIVATE PERSONS LAWFULLY INTER-
FERING TO Apprehend Felons, or to Prevent a Breach of the
Peace.

' When a constable, or other person properly authorised, acts in the
execution of his duty {q), the law casts a pecuhar protection round him,
and consequently, if he is killed in the execution of his duty, it is in general
murder, even though there be circumstances of hot blood and want of
premeditation as would in an ordinary case reduce the crime to man-
slaughter ' (r). In the earlier authorities such killing is described as of
malice aforethought, as being an outrage wilfully committed in defiance
of the justice of the kingdom (s).

The protection extends to justices when acting as conservators of
the peace, to sheriffs and their bailiffs, and to constables and other
peace officers (t), and prison officers (u), whether they are acting under the
authority of the common law or of a statute. The officer is under this
protection not only at the scene of action but eundo^ morando, et redeundo ;
and if he comes to do his office, and meeting with great opposition, retires
and is killed in the retreat, this will amount to murder ; as he went in
obedience to the law and in the execution of his office, and his retreat was
necessary in order to avoid the danger by which he was threatened. Upon
the same principle, if he meets with opposition by the way, and is killed
before he comes to the place, such killing is murder (s).

The most important of the earlier cases on the subject is the
Sissinghurst House case {v). A great number of persons assembled in a
house called Sissinghurst, in Kent, issued out and committed a great riot
and battery upon the possessors of a wood adjacent. The name of one. A.,
was known, the rest were not known ; and a warrant was obtained from a
justice of peace to apprehend A., and divers others persons unknown,
who were all together in Sissinghurst House. The constable, with about
sixteen or twenty called to his assistance, came with the warrant to the
house, and demanded entrance, and told some of the persons within that
he was the constable, and came with the justice's warrant, and demanded
A. with the rest of the offenders that were then in the house. One of the
persons within came, and read the warrant, but refused admission to the
constable, or to deliver A. or any of the malefactors ; but, going in,

(?) On indictments for assaulting or kill- slayer meant to inflict grievous bodily in-

ing them, proof that they were so acting is jury for the purpose of facilitating escape

enough without producing their appoint- or rescue from prison or lawful custody or

ment. Butler w. Ford, 1 Or. & M. 622, 662. lawful arrest.' K. «;. Rice, 4 Ontario L. R.

M'Gahey v. Alston, 2 M. & W. 206. 233.

(r) R V. Allen, per Blackburn, and Mel- (s) 4 Co. Rep. 40. 3 Co. Inst. 56. Fost.

lor, JJ. 17 L. T. (N. S.) 222 : Stephen 318. 1 Hale, 457, 460, 494. 2 Hale, 117,

Dig. Cr. Law (6th ed.) 421. The rule is 118.

thus stated in a recent Canadian case, in (t) Including special constables, until
which a constable had been killed in an their services are determined or suspended,
attempt by prisoners under trial for felony R. v. Porter, 9 C. & P. 778, Coleridge, J.
to escape while being conveyed back to 1 & 2 Will. IV. o. 31, s. 7.
prison ' Homicide is murder whether the {u) 61 & 62 Vict. c. 41, a. 10. The pro-
offender means or does not mean that tection applies to them while acting as
death should ensue, or knew or did not prison officers,
know that it was likely to ensue, if the (v) 1 Hale, 461.

VOL. I.

3 A

722 Of Homicide, [book ix.

commanded the rest of the company to stand to their staves. The
constable and his assistants, fearing mischief, went away ; and being
about five rods from the door, B., C, D., E., F., &c., about fourteen m
number, issued Out and pursued the constable and his assistants. The
constable commanded the peace, yet they fell on, and killed one of the
assistants of the constable, and wounded others, and then retired into
the house to the rest of their company which were in the house, whereof
the said A> and one G., that read the warrant) were two. For this A.,
B., C, B., E., F>, G., and others, were indicted of murder, and tried at the
King's Bench bar, when these points were unanimously determined :—

1. That although the indictment were, that B. gave the stroke, and
the rest were present aiding and assisting, though in truth C. gave the
stroke, or that it did not appear upon the evidence which of them gave
th3 stroke, but only that it was given by one of the rioters, yet that such
evidence was sufficient to maintain the indictment ; for in law it was the
stroke of all that party, according to the resolution in Mackalley's case (w).

2. That in this case all who were present and assisting to the rioters
were guilty of the death of the party slain, though they did not all actually
strike him, or any of the constable's company.

3. That those within the house, if they abetted or counselled the riot,
were in law present aiding and assisting, and Were principals as well as
those who issued out and actually committed the assault ; for it was but
within five rods of the house, and" in view thereof, and all done as it were
in the same instant (a?).

4. That there was sufficient notice that it was the constable, before
the man was killed. (1) Because he was the constable of the same viU.
(2) Because he notified his business at the door before the assault, viz.,
that he came with the justice's warrant. (3) Because, after his retreat,
and before the man was slain, the constable commanded the peace ;
and, nevertheless, the rioters fell on and killed the man.

5. That the killing of the assistant of the constable was as much
murder as would have been killing the constable himself.

6. That those who come in to the assistance of the constable, though
not specially called thereunto, are under the same protection as they that
are called to his assistance by name.

7. That although the constable retired with his company upon the not
delivering up of A., yet the killing of the assistant of the constable in that
retreat was murder. (1) Because the retreat was one continued act in
pursuance of his office ; being necessary, when he could not attain the
object of his warrant, and being in effect a continuation of the execution
of his office, and under the same protection of the law as his coming was.
(2) Principally because the constable, in the beginning of the assault,
and before the man was stricken, commanded the peace.

It seems that even if the constable had not commanded the peace,
yet as he and his company came about what the law allowed them, and,
when they could not effect it fairly, were going their way, the rioters

{w) 9 Co. Rep. 65, an indictment for {x) See Lord Daore'a case, 1 Hale, 439;

Idlling a Serjeant at maoe of tlie City of Crompt. 25 a. Dalt. u. 145, p. 472. Y.B. 34

London, wlien attempting to make an Hen. VIII. B. Coron. 172. See also Moore

arrest by night on civil process. (K.B.) 86 ; 72 E. R. 458 ; Kel. (J.) 56.

CHAP. I.] Of Resistance to the Law. 723

pursuing them and killing one made the offence murder in them all ;
for the act was done without provocation, and the constable and his
company were peaceably retiring ; but this point was not relied upon,
because there was enough upon the former points to convict the offenders.

In the conclusion, the jury found nine guilty, and acquitted those
within, not because they were absent, but because there was no clear
evidence that they consented to the assault as the jury thought ; and
therefore judgment of death was given against the nine.

In time past peace officers have occasionally taken opposite sides in
an affray and the death of one has ensued. Where the officers act as
partisans they lose their protection as officers {y), and where constables
interfere with the sheriff or his officers in the execution of writs and slay
a sheriff's officer the killing would be murder, as they are not entitled to
obstruct the sheriff in the execution of the King's writ {z).

Authority of the Officers.

Justices of the Peace. — The powers and duties of justices of the
peace as conservators of the peace are not now exercised by personal
interposition or making arrests in dealing with breaches of the peace,
except in the case of riot, as to which vide ante, Book VI. Chapter I.
p. 431, but by the judicial act of issuing warrants or other process for
the arrest of offenders.

Sheriffs and Bailiffs. — The sheriff has powers and duties as to pursuit
and arrest of felons {a), and as to suppression of riots (6). But in modern
practice the functions of the sheriff and his bailiffs are restricted to the
execution of writs, &c., issued by the High Court of Justice (c). If he is
resisted in the execution of a writ he is to take with him the fosse comitatus
and go himself to do execution, and may arrest the resisters, whose resist-
ance is a misdemeanor (d). The powers and duties of bailiffs and officers
of County Courts (e), and other inferior civil Courts of Record are analogous
to those of the sheriff and his officers. And all are within the same
special protection as constables.

In civil cases the authority of the sheriff, and his bailiffs, &c., to arrest
or imprison is regulated and limited by the writ or process which he is
empowered to execute and the extent of the district in which he is privi-
leged to act (c). He is protected if the process, though erroneous, is not
void (/), but not if it is void on the face of it.

Constables and Police Officers. — The common-law constables, head-
boroughs and bors-holders are now rarely, if ever, appointed, but the
following statutory peace officers are by the statutes under which they
are appointed given the powers, privileges, and immunities, and made
liable for the duties of a constable within his constablewick.

1. A special constable duly appointed by justices within the area for

iy) 1 Hale, 460. 2 East, P. C. 304. competent Court. 1 Hawk. c. 28, a. 19.

(z) 1 Hale, 460. 2 East, 305. {d) 50 & 51 Vict. v;. 55, s. 8 (2). Ante,

(a) 50 & 51 Vict. c. 55, ss. 8, 29. p., 550.

(6) Ante, Bk. vi. c. i. p. 431. (e) 51 & 52 Viet. c. 43, ss. 35, 48, 49, 50,

(c) Mather, Sheriff Law. No private 52.
person can lawfully arrest in a civil suit (/ ) 1 Hawk. c. 32, ss. 61-62. Cf. 51 & 52

without authority of a writ or process of a Vict. c. 43, s. 52, as to county court process.

3a2

724 Of Homicide, book ix.]

which those justices have jurisdiction until his services are suspended or
determined {g).

2. Local constables appointed for parishes within the county for
which they are appointed and the adjoining county Qi).

3. Officers of the statutory county police, throughout the county {i),
and in every borough situate wholly or in part within the county {j).

4. Officers of the statutory police of a municipal borough (which has
a separate police force) within the borough or within seven miles of it {h).

5. Constables appointed under the Town PoHce Clauses Act, 1847,
within the limits of the special Act relating to the town and in any place
not more than five miles beyond such limits (Z).

6. Officers of the Metropolitan Police Force (wi), and the City of
London Police Force (m).

7. Prison officers in convict or local prisons (o).

8. Constables appointed for canals [f).

Constables, and other peace officers, are invested with large powers
and duties at common law, for the purpose of preserving the peace,
preventing the commission of criminal offences, apprehending offenders,
and executing the warrants of justices of the peace. Every constable,
mthin the limits of his district, is a conservator of the peace at common
law iff). It is his duty, therefore, to do all that he can to preserve the
peace within his constablewick (q). And in order the better to enable
peace officers to preserve the peace, they have authority to command all
other persons to assist them, in endeavouring to appease such disturb-
ances as take place in their presence (r).

Arrest without Warrant. — The powers of a constable or like peace
officer to make arrests without warrant depend (1) on the common law,
(2) on numerous statutes.

(1) Common Law. — At common law a constable m.a,Y arrest a person
whom he finds committing a felony, or may arrest upon reasonable
suspicion that a felony has been committed by the person arrested,
although no felony has, in fact, been committed (s), and whether the

(?) 1 & 2 Will. IV. u. 41, ss. 1, 5, 9, 11 ; them, see s. 20.

5 & 6 Will. IV. c. 43, s. 1. They are only (m) 10 Geo. IV. i;. 29, o. 4 ; 2 & 3 Vict,

appointed on emergency. See R. n. Porter, cc. 47, 71. Their powers extend to the

9 C. & P. 778. river Thames up to the boundaries of

(ft) 3 & 4 Vict. c. 88, s. 16 ; 5 & 6 Vict. Bucks and Berks, and to these counties and

c. 109, 3. 15. They are now appointed only the counties of London, Middlesex, Hert-

when quarter sessions deems it necessary. ford, Essex, Kent, and Surrey : and they

35 & 36 Vict. 0. 92. Archbold, Quarter act in royal palaces and dockyards. Their

Sessions (6th ed.), 145. powers as to the execution of warrants

(i) 2 & 3 Vict. c. 93, s. 8; 3 & 4 Vict. u. 88. extend to all England. As to assaults on

(j) 19 & 20 Vict. c. 69. They are not to them, see 2 & 3 Vict. c. 47, s. 18 ; 24 & 25

be required to act within a municipal Vict. c. 51, s. 53.

borough, which has a separate police force, (to) 2 & 3 Vict. c. xciv., a local Act.

except in executing warrants of the county (o) 61 & 62 Vict. c. 41, s. 10. Cf. Prison

justices. 22 & 23 Vict. u. 32, s. 2. Act, 1877 (40 & 41 Vict. c. 21), s. 28, as to

{h) 45 & 46 Vict. c. 50, ss. 191, 193, 195 ; legal custody of prisoners within or without

46 & 47 Vict. c. 44, s. 2. And see R. v. the walls of the prison.

Borton, 12 A. & E. 470. R. v. Cumpton, (p) 3 & 4 Vict. o. 50, s. 1.

5 Q.B.D. 341. Maberley v. Titterton, 7 M. (fp) Dalton, c. 1.

6 W. 540. As to assaults on them, see (q) 1 Hale, 463. 1 Hawk. o. 31, h. 54.
45 & 46 Vict. c. 50, s. 188, and post, p. 893. Fost. 310, 311. 1 East, P. C. 303.

(I) 10 & 11 Vict. 0. 89, 3. 8. No towns (r) R. v. Sherlock, L. R. 1 C. C. R. 20,

which are not municipal boroughs now Dalton, c. 1.
have their own police. As to assaults on (s) This is an addition to his power as

CHAP. I.] Of Resistance to the Law. 725

reasonable grounds of suspicion are matters within the constable's
knowledge, or are derived from facts stated to him by others {t).

A constable is not as a general rule entitled to arrest for misdemeanor
after it has been committed, whether the offence be fraud, breach of the
peace, &c. ; nor to arrest on suspicion of misdemeanor (m).

He may arrest any person who in his presence commits a misdemeanor
or breach of the peace {v), if the arrest is effected at the time when, or
immediately after, the offence is committed (w), or while there is danger of
its renewal (x), but not after the breach, or danger of its renewal, has
ceased {y). He may arrest or start in immediate pursuit if the mis-
demeanor is a breach of the public peace (2-). And he may take into his
custody persons given in charge to him by persons who have witnessed
a breach of the peace, if there is danger of its immediate renewal (a), but
not if the affray is over and peace restored (6).

The common law power of arrest extends to persons who threaten to
kill, beat, or hurt another, or to break the peace in his presence, if com-
plaint is at once made to the constable by the person threatened (c).

There are statements in the early authorities as to the right of peace
officers to arrest persons reasonably suspected of being night walkers (rf),
or disorderly persons, and persons unduly armed (e), which appear to have
been made with reference to a statute now repealed (/), and the arrest
of idle and disorderly persons and suspected persons and reputed thieves,
frequenting or lying or loitering in public places, is now regulated by
statute (</).

Where a policeman saw the prisoner playing the bagpipes in a street
at half-past eleven o'clock at night, by which he collected a large crowd
around him, among whom were prostitutes and thieves, and the police-
man told him he could not be allowed to play at that time of night, and
he must go on, but he said he would be damned if he would, and the

a citizen to pursue and take felons when see East, P. C. 306. The object of this

a felony has actually been committed, or power is to enable the constable to take the

to arrest a person attempting to commit offender before a justice and have him

felony. sworn to keep the peace, &c.

(t) Beokwith v. Philby, 6 B. & C. 635. (d) To be a common night-walker is said

Davis V. Russell, 5 Bing. 354. Hogg v. to be an indictable misdemeanor. 2 Hawk.

Ward, 27 L. J. Ex. 443. Marsh v. Loader, c. 12, s. 20. Latch, 173. Popham, 208.

14 C. B. (N. S.) 535. See 2 Hale, 79, 80, As to the meaning of night-walker, see

91-93. Watson v. Carr, 1 Lew. 6, Bayley, J.

(u) See GrifBn v. Coleman, 28 L. J. Ex. (e) Tooley's case, 2 Ld. Kaym. 1296. 2

134. Hale, 89, 97. 1 East, P. C. 303. Cf. E. v.

(v) Timothy v. Simpson, 1 Cr. M. & R. Dadson, 2 Den. 35. Lawrence v. Hedger,

757, approved in Price v. Seeley, 10 CI. & F. 3 Taunt. 14.

38. Dereoourt v. Corbishley, 5 E. & B. {/) 5 Edw. III. c. 15, repealed in 1856

188. (19 & 20 Vict. c. 64). 2 Edw. III. c. 3,

(w) See Fox v. Gaunt, 3 B. & Aid. 798. which prohibits riding or going armed in

Bowditch V. Balchin, 5 Ex. 378. affray of the peace, is in force and appears

(x) R. V. Light, 27 L. J. M. C. 1. specifically to authorise arrest for breach

(y) R. V. Walker, 23 L. J. M. C. 123. of its provisions, wide anie, p. 428.

Cook V. Nethercote, 6 C. & P. 741. R. v. (g) See 5 Geo. IV. c. 83, s. 4, amended

Bright, 4 C. & P. 387. by 34 & 35 Vict. c. 112, s. 15, and 54 & 55

(z) See R. v. Hunt, post, p. 727. R. v. Vict. c. 69, s. 7 ; and as to the metropolis,

Howarth, post, p. 727. 10 Geo. IV. c. 44, s. 7, and 2 & 3 Vict.

(a) Timothy v. Simpson, vhi supra. u. 47, s. 66. As to the meaning of the

(6) 1 East, P. C. 305, 306. 2 Co. Inst. word frequenting, see R. v. Clark, 14

52. 2 Hawk. c. 12, s. 20. Strickland y. Q.B.D. 92. As to the meaning of suspicious

Pell, Dalton, c. 1, s. 7. 2 Hale, 90. character, see Cowles v. Dunbar, M, & M.

726 Of Homicide. [book ix.

policeman took hold of him by the shoulder, and slightly pushed him,
on which the prisoner wounded him with a razor ; it was held, that if
the prisoner was collecting a crowd of persons at that time of night, and
the policeman desired him to go on, and laid his hand upon his shoulder
with that view only, he did not exceed his duty, and if the prisoner then
wounded him, it would have been nmrder if he had died ; but if the
policeman gave the prisoner a blow and knocked him down, he was not
justified in so doing [h).

Riot.— The general and special powers and duties of justices, sheriffs,
under-sheriffs, constables, and other peace officers, as to the suppression
of riots are stated ante, Book VI. Chapter I. sect. 6, p. 431 (i).

(2) Statute.— Power to arrest without warrant is given by many
statutes as to many misdemeanors and petty offences, e.g., persons
found lying or loitering in a highway, yard, or place during the night,
whom the constable reasonably suspects of having committed or being
about to commit any felony against the Larceny, Malicious Damage, or
Offences against the Person Acts of 1861 (/).

The powers of a peace officer to arrest upon the warrant of a judicial
officer depend on the competence of the judicial officer to issue the
warrant, the person or persons to whom it is addressed, the district in
which the execution of the warrant is attempted, and the mode adopted
for executing it.

Persons acting in Aid of Officers of Justice.— The protection which
the law affords to ministers of justice extends also to every person
coming to their aid and lending his assistance for the keeping of the
peace, &c., or attending for that purpose, whether commanded or not,
provided that the slayer has knowledge or notice that they are so acting
in assistance (k).

In R. V. Phelps (I), the deceased having been required by a policeman
to aid him in taking a man, whom he had apprehended on suspicion of
stealing potatoes, to the station-house, did so for some time, and then
was going away, when he was attacked and beaten to death. It was
objected that he was not at the time aiding the policeman. Coltman, J. :
' He is entitled to protection eundo, morando, et redeundo ' (m).

In R. V. Porter (w), the indictment was for the murder of D., who had
been called upon by a police constable to aid in apprehending the prisoner
and another man charged with stealing money. Brett, J., in summing
up, said : ' The men had been given into custody of a police constable,
who had legal authority to take them into custody, and to call upon others
to assist him, and they had no right to resist him, and in resisting him
they were doing what was illegal. If the prisoner kicked the man,
intending to inflict grievous harm, and death ensued from it, he is guilty
of murder. If the prisoner inflicted the kick in resistance of his lawful

(h) B. V. Hagan, 8 C. & P. 167, BoUand, see Chronological Index of Statutes (ed.

B., and Coltman, J. 1909), tit. ' Arrest.'

(i) And see 1 Hawk. c. 31, ss. 48, 49, 50, (k) Sissinghurst case, ante, p. 721. Post.

84. Fost. 272. 309, 310, 311.

(j) 24 & 25 Viot. c. 96, s. 104 ; o. 97, (I) C. & M. 180, and MS. C. S. G.

s. 57 ; c. 100, s. 66. Cf. as to offences on (m) Tide ante, p. 721.

Iiighways, &o., 5 & 6 Will. IV. o. 50, ss. 58, \n) 12 Cox, 444.
59. For a complete list of such statutes.

CHAP. I.] Of Resistance to tie Law. 727

arrest, even although he did not intend to inflict grievous injury, he is
equally guilty of murder. But if in the course of the struggle he kicked
the man, not intending to kick him, then he is only guilty of manslaughter/

In case of a riot, if a constable sees a breach of the peace committed, he
may call upon any one present for his assistance if there is a reasonable
necessity therefor. If the person called upon, without any physical
impossibility or law excuse refuse to do so, he is liable to be indicted, and
it is no defence that in consequence of the number of rioters the single aid
of the person called upon would have been of no use. E. v. Brown,
C. & M. 314. Vide ante, Book VI. Chapter I. sect. 6, p. 431 .

Private Persons, — The protection extends also under certain hmita^
tions to private persons who interpose to keep the peace and suppress an
affray by parting or arresting the combatants, whether the combat arises
from a sudden or premeditated quarrel (o), or endeavour to arrest and
bring to justice felons or persons who have given a dangerous wound. As
they are discharging duties or exercising powers imposed and given by law,
they are in a sense engaged in the public service and for the advancement
of justice, though not specially appointed {p). If such a person is resisted
and killed, the slayer is guilty of murder if he had express notice of the
purpose for which the deceased came, e.g., by his commanding the peace
or otherwise shewing that his interposition was in the interests of peace
and justice, or with friendly intent {q). Where express notice is not given
the purpose of the private intervention may be misunderstood and
the violence offered may be extenuated (r).

At common law a private person may, on his own initiative, without
warrant, apprehend and detain, until they can be carried before a magis-
trate, all persons found committing or attempting to commit a felony (s)j
and where a felony has actually been committed may arrest any person
reasonably suspected of having committed it (t). He is also justified in
using force to prevent the commission of felony (m), and in arresting
persons committing a breach of the public peace, or in giving them into the
custody of a peace officer at the time of the breach or while there is danger
of its renewal {v).

Foster says (Crown Law, p. 318) : ' In the case of private persons using
their endeavours to bring felons to justice, these cautions ought to be
observed : That a felony hath been actually committed (w). For if no
felony hath been committed, no suspicion, how well soever grounded,
will bring the person so interposing within the protection of the law in the
sense I have already stated and explained.'

(o) 1 Hawk. 0. 3], ss. 48, 54. Chambre, J.

(p) Fost. 318. (v) As to arrest by private persons for

(q) Fost. 272, 311. 1 East, P. 0. 304. misdemeanor, see 1 Hawk. c. 63, ss. 11, 14,
1 Hawk, c, 31, ss. 48, 54. The other par- 21, 23 ; 2 Hawk. c. 12, s. 30. R. v. Pin-
ties to the affray are not responsible for ney, 3 St. Tr. (N. S.) 11, ante, p. 431.
the killing unless they join in the attack Holyday v. Oxenbridge, Cro. Car. 234 ; 79
on the intervener. E. R. 805. Fox v. Gaunt, 3 B. & Ad. 798.

(r) Fost. 310, 311. Timothy v. Simpson, 1 Cr. M. & R. 757:

{s) R. V. Hunt. 1 Mood. 93. R. v. approved in Price v. Seeley, 10 CI. & F. 28.

Howarth, 1 Mood 207. Eighth Report, Grant v. Moser, 5 M. & G. 123. Baynes v.

Cr. L. Commissioners, p. 246. Brewster, 2 Q.B. 375.

(t) Fost. 318, infra. (w) See Beokwith v. Philby, 6 B. & C.

Cm) Handcock «;, Baker, 2 B. & P. 260, 635, Allen v. 1,., S. W. R., 6 Q.B.D. 65..

728 Of Homicide. [book ix.

Sect. 16. ' Supposing a felony to have been actually committed, but
not by the person arrested or pursued upon suspicion, this suspicion,
though probably well founded, will not bring the person endeavouring to
arrest or imprison within the protection of the law, so far as to excuse
him from the guilt of manslaughter, if he killeth, or on the other hand to
make the killing of him amount to murder. I think it would be felonious
homicide, but not murder, in either case ; the one not having used due
diligence to be apprised of the truth of the fact ; the other not having
submitted and rendered himself to justice, since, if his case would
bear it, he might have resorted to his ordinary remedy for the false
imprisonment.'

Hale says (1 H. P. C. 490) : ' If A. be suspected by B. to commit a felony,
but in truth he committed none, neither is indicted, yet upon the offer to
arrest him by B. he resists or flies, whereby B. cannot take him without
killing him, and B. kills him, if in truth there were no felony committed,
or B. had not a probable cause to suspect him, this killing is at least
manslaughter, but if there were a felony committed, and B. hath cause to
suspect A., but in truth A. is not guilty of the fact, though upon this
account B. may justify the imprisonment of A., yet quwre, if B. kills A.
in the pursuit, whether this will excuse him from manslaughter ' (x).

He says further (2 H. P. C. 82) : ' But if a felony be committed, and
A. upon probable cause suspects B. to have been the felon, though the law
permits him to arrest B., though in truth innocent, yet he cannot justify
the killing of him upon his flight and refusing to submit, justiciari se
permittere nolens ; but if he kills him, it is at his peril ; for if B. be innocent
it is at least manslaughter (3 Co. Inst. 56, 221 ; 22 Assiz. 55), and the
reason is because B. is not bound to take notice of A. as authorised to
arrest him, as being no ofiicer, nor having any warrant. It is true, a
constable arresting in the king's name, or offering so to do, the party is
bound to take notice and submit, as hath been said (part 1, cap. 37),
but a mere stranger offering to do it, a man is not bound to take notice of
his authority, and therefore may fly from him if innocent, for possibly he
may think he came to rob him. Yet farther, if an innocent person be
actually arrested upon suspicion by a private person, all circumstances
being duly observed, and he breaks away from the arrest, vet I do not
think the person arresting can kill him, though he cannot be otherwise
taken, for the person arrested is not bound to take notice of that authority
that the law gives to a private person in this case.'

Upon an indictment for unlawful wounding, it appeared that the
prisoner had asked and obtained permission to take a basket of ashes from
the prosecutor's ash-pit. As he was carrying away the ashes the prosecu-
tor's apprentice saw among the ashes the spout of a new tea-kettle which
had stood on a shelf near the ash-pit, and gave the alarm. The prosecutor
then seized the prisoner to detain him while a constable was sent for.
The prisoner resisted, and in the struggle both fell, and the prisoner cut
the prosecutor with a knife ; a rattle of copper had been heard while the
prisoner was at the ash-pit. It was objected that the prosecutor had no
right to detain the prisoner. Alderson, B., said : ' That will depend on

{x) See also 2 Co. Inst. 52, 172. Coxe v. Wirrall, Cio. Jao. 193.

CHAP. I.] Of Resistance to the Law. 729

whether the jury are satisfied that the prisoner had in fact stolen the tea-
kettle. If he had stolen the tea-kettle, the prosecutor had a right to
detain him, and this wounding will be felony ' {y).

Hue and Cry. — If a felony is committed, and the felon flies from
justice, or a dangerous wound is given, it is the duty of every man to use
his best endeavours to prevent an escape ; and in such cases, if fresh suit
be made, and a fortiori, if hue and cry is raised (z), all who join in aid of
those who began the pursuit, are under the same protection of the law {a).
Thus, where upon a robbery committed by several, the person robbed
raised hue and cry, and the coimtry pursued the robbers, and one of the
pursuers was killed by one of the robbers, it was held that this was murder,
because the country, upon hue and cry raised, are authorised by law to
pursue and apprehend the malefactors ; and that, although there was no
warrant of a justice of the peace to raise hue and cry, nor any constable
in the pursuit, yet the hue and cry was a good warrant in law for the
pursuers to apprehend the felons ; and that, therefore, the killing of any
of the pursuers was murder (&).

The question is raised by the earlier writers whether a private person
is hound to arrest a person indicted for felony if no warrant is produced,
and whether, if a private person kills a person accused of felony in en-
deavouring to arrest him, the slayer's justification depends on the guilt
or innocence of the person arrested. Knowledge that an indictment had
been found or a warrant issued might create a reasonable suspicion of
guilt, but would not justify the slaying 5 and the arrest by a private
person without warrant is a trespass if no felony had in fact been com-
mitted (c).

Statutes. — The following statutes authorise arrest without warrant
by private persons, as well as by peace officers {d) : — ■

Larceny Act, 1861 (24 & 25"Vict. c. 96), s. 103 : Of any person ' found
committing ' any ofience against the Act whether punishable on indict-
ment or summary conviction (e), except angling in the day time (/).

Coinage Offences Act, 1861 (24 & 25 Vict. c. 99), s. 31 : Of any person
found committing any indictable offence against the Act.

Prevention of Offences Act, 1851 (14 & 15 Vict. c. 19), s. 11 : Of any
person found committing any indictable ofience in the night, i.e. between
9 p.m. and 6 a.m.

(y) R. V. Price, 8 C. & P. 282, Alderson, gives as a reason that there is a charge

B. against the party on record. 1 Hawk.

(z) By the Sheriffs Act, 1887 (50 & 51 c. 28, s. 12. But upon this it is remarked

Vict. c. 55), o. 7, which re-enacts 3 Edw. I. that it does not readily occur why ofBcers

c. 9, ' Every person in a county shall be only can take notice of the charge on

ready and apparelled at the command of record. 1 East, P. C. 300.
the sheriff and at the cry of the county to (d) For other enactments, see Metro-

an-est a felon whether within franchise or politan Police Guide (4th ed.), 550, and

without, and in default shall on conviction Official Index to kStatutes (ed. 1908), tit.

be hable to a fine." ' Arrest.'

(a) 1 Hale, 489, 490. 1 Hawk. c. 28, (e) See R. -u. Sherriff, 20 Cox, 334,
s. 11. Fost. 309. 1 East, P. C. 298. Darling, J., an indictment for murder of

(b) Jackson's case, 1 Hale, 464. a policeman who was ti-ying to arrest the

(c) 2Hale, 79, 80, 85, 86, 91, 92, 93. 3 Co. prisoner for having in his possession a ferret
Inst. 221. 1 East, P. C. 301. Dalt. c. 170, knowing it to be stolen.

s. 5. R. V. Turner, 1 Mood. 347, sed vide, (/) Barnard v. Roberts, [1907] 96 L. T.

1 Hale, 489, 490. Hawkins, in alluding to 648 ; 21 Cox, 425.
the power of arrest by ofSoers in this case.

730 Of Homicide. [book ix,

Vagrancy Act, 1824 (5 Geo. IV. c. 83), s. 6 ; Of any person found
offending against the Act.

Persons ' found committing ' any offence against the Malicious
Damage Act, 1861 (24 & 25 Vict. c. 97), may be arrested without warrant
by a peace officer or the owner of the property injured or his servant, or
any person authorised by him (sect. 61) {ff).

In the event of arrest of an offender by a person other than a peace
officer it is his duty at common law or under the particular statute to convey
or deliver his prisoner to a peace officer {g),'m order that he may be conv eyed
as soon as reasonably maybe before a justice of peace, &c., to be dealt with
according to law, or to take him with all convenient speed before a justice.

Statutes authorising arrest without warrant have been construed
somewhat strictly. The arrest will be illegal if not in close accordance
with the words of the statute, e.g. if it is not immediate or if on arrest the
prisoner is detained in private custody {h), instead of being handed over
to officers of the law. The words ' found committing ' used in many of
these statutes are not limited to ' caught in the act.'

In Hanway v. Boultbee {i), the plaintiff, a pedlar, went to the house
of Mr. B., and a small dog of Mr. B.'s ran out at the plaintiff, who with a
stick gave the dog a blow, which stunned and permanently blinded it. The
plaintiff then went away, and Mrs. B. immediately sent a boy to fetch a
constable. The boy returned with the constable, and Mrs. B. directed them
to go after the plaintiff and apprehend him for the injury done to the dog.
The)' went in pursuit of the plaintiff, and found him at a public-house about
a mile from Mr. B.'s, and the constable apprehended him and took him
before the magistrate. Tindal, C.J. (in summing up), said: 'The jury will
have to consider first, whether the plaintiff had committed a wilful injury
to the dog ; and secondly, whether he was found committing that offence
and immediately apprehended. With respect to the second question, the
words of 7 & 8 Geo. IV. c. 30 certainly differ materially from those in
1 Geo. IV. c. 56 {j), and were obviously meant to restrict the powers

(ff) See also the power of arrest by potatoes concealed on his person, which

pawnbrokers (35 & 36 Vict. o. 93, s. 34 : appeared to have been recently dug : but

Howard v. Clarke, 20 Q.B.D. 558), and he had not seen him steal, dig up the pota-

by owners of property, their servants toes, nor was there any evidence that any

and agents in case of ofEenoes against the gardens had been robbed, or that the priso-

Metropohtan Police Act, 1839 (2 & 3 Vict. ner had been near any garden. It was

0. 47, s. 16) or Town Police Clauses Act, 1847 held that the arrest of the prisoner was not

(10 & 11 Vict. c. 89, s. 157), and the Night authorised by 7 & 8 Geo. IV.' c. 29, s. 63

Poaching Act, 1828 (9 Geo. IV. c. 69, s. 2), (rep.), nor at common law, as stealing po-

and by water bailiffs under the Fisheries tatoes out of a garden is not an offence at

Acts (36 & 37 Viet. u. 71, s. 38 ; 47 & 48 common law. Cf. Ballinger v. Ferris, 1 M.

Vict. c. 11, s. 3). & W. 628. Reed v. Cowmeadow, 6 A. &

(g) See R. v. Curran, 3 C. & P. 397. E. 661, and Beachey v. Sides, 9 B. & C.

(A) R. V. Curran, 3 C. & P. 397, where a 806, cases of illegal arrest under 7 & 8 Geo.

man found in a field adjoining one from IV. o. 30, s. 28, now incorporated in 24 & 25

which turnips had been stolen, was appre- Viot. c. 97, s. 61.

hended by a servant of the owner of the (i) 1 M. & Rob. 15 ; 4 C. & P. 350.

turnips, under the owner's directions, and (j) The words of 1 Geo. IV. c. 56, s. 3

taken to the owner's house, and then to the (repealed by 7 & 8 Geo. IV. u. 27), were :

constable, instead of being taken forthwith ' Any person or persons who shall have

before a justice as directed by 7 &8Geo. IV. actually committed, or be in the act of

c. 29, s. 63 (rep.). InR. u. Phelps (0. & M. committing,' any offence. The words of

180), an mdictment for murder of a person 7& 8 Geo. IV. o. 30, s. 28 (rep.), on

acting in aid of a constable, the constable which this case turned, were the same as

had arrested a man at night, and had found those in 7 & 8 Geo. IV. o. 29, s. 63, repealed

CHAP. I.] Of Resistance to the Law. 731

given by that Act. The object of the legislature seems to have been to
allow the immediate apprehension of a party taken in the commission of
a crime of this nature, because otherwise such offences would frequently
be committed by persons passing through or having no fixed domicile in
the place, and they would therefore entirely escape, if the party injured
were obliged to wait for the formalities of a charge before a magistrate,
or a warrant. Where the offender is fixed in the country, so that he can
be found and apprehended at a subsequent time, there is no reason why
that apprehension should not be after a regular proceeding ; and the
statute therefore differs from 1 Geo. IV. c. 56, and does not allow a
stale apprehension on an old charge, without a warrant. Still the words
of the present statute must not be taken so strictly as to defeat its reason-
able operation. Suppose a party seen in the act of committing the crime
were to run away, and immediate and fresh pursuit to be made : I think
that would be sufficient. So, in this case, the party is actually seen in the
commission of the act complained of : as soon as possible an ofiicer is
sent for, and he is taken as soon as possible. No greater diligence could
be required ; and that being the case, I think it must be treated as an
"immediate apprehension" for an offence which the plaintiff, supposing
under the circumstances that it was an offence at all, was "found com-
mitting/' and this was the imprisonment complained of.'

But arrest at 10 p.m. of a person who committed an offence at 1 a.m.
has been held not to be within sect. 103 of the Larceny Act, 1861, on
the ground that the word ' immediately ' in that section means imme-
diately after the commission of the offence, not immediately after the
discovery that it has been committed (/c).

In R. V. Eraser (Z), where a policeman found the prisoner in a garden at
night, stooping down close to the ground, and the prisoner ran away, and
the policeman ran after him and caught him ; and it appeared that the
prisoner was plucking some carnations in the garden, and the jury found
that the prisoner had wilfully and maliciously plucked flowers from
plants in the garden with intent to steal them, and that he was found by
the policeman committing that offence, but that the policeman did not
inform the prisoner by word of mouth that he belonged to the police force.
On a case reserved, it was held that the policeman had authority to
apprehend the prisoner.

In actions for illegal arrest in intended exercise of the powers given
by sect. 103 of the Larceny Act, 1861, it has been held that the defendant
was entitled to notice of action if he acted in bona -fide belief, in circum-
stances which, if they had really existed, would have amounted to a
justification (m). It would seem that the arrest would be justified if the
person arrested was seen in a position justifying the belief that he had
committed the offence and the prisoner is arrested then and there or after
fresh pursuit (n).

In R. V. Howarth (o), upon an indictment for malicious wounding,

in 1861 and re-enacted as 24 & 25 Vict. o. Vict. o. 61.

96, s. 103. (n) Downing v. Capel, vhi supra, Keating

(h) Downing v. Capel, L. R. 2 C.P. 461. and Smith, JJ. Cf. Roberts v. Orchard,

(Z) 1 Mood. 419. 33 L. J. Ex. 65.

(m) Griffith v. Taylor, 2 C.P.D. 194. (o) 1 Mood. 207,
JSfotioe of ^pt^qn is abolished. 56. & 57

732 Of Homicide. [book ix.

it appeared that near midnight two men were seen near a board-house
belonging to 0. ; on two persons going up to the board-house, they heard
a noise, and they found the door half open, and saw the prisoner inside
and heard a noise among the boards, and the prisoner said ' Bring the
board ' ; the two persons then went to O.'s house to call him up ; one of
them then went to the bottom of the road, which was about one hundred
yards from the board-house, and in a quarter of an hour 0. came up, with
a carving knife in his hand, and having also got another person to assist
him, they went to the board-house, the door of which was then closed ;
the hasp was over the staple, and the padlock was in the staple, but not
locked ; nobody was in the board-house, thej' went in, and 0. found two
planks removed from the place, where he had seen them four days before,
to another part of the board-house, nearer the door ; they then went on
from the board-house, and after searching in several places found the
prisoner in the garden of another person, crouched down with a drawn
sword in his hand ; the prisoner was asked twice what he did there, he
made no answer, and then he started off ; one of the witnesses ran and
caught hold of him, but the prisoner compelled him to leave hold of him ;
the prisoner fell over something, and then the other witnesses came up ;
the prisoner struck 0. on the side with his sword, but did not cut him ;
then the prisoner again attempted to get away, but was prevented by
some paling ; the prisoner then turned round and struck 0. with his
sword, cut through O.'s hat into his head, and produced a slight
wound on his head ; up to that time 0. had not struck the prisoner
any blow ; the jury negatived the felony in removing the boards
from one part of the board-house to another ; and it was objected that
the prosecutor had no right to apprehend either at common law or under
the Vagrancy Act, 1824 (5 Geo. IV. c. 83), s. 6 ; for at common law the
power to arrest for offences inferior to felony was confined to the time of
committing the offence, and it was the same under the Vagrancy Act ;
that the prisoner was not found by the prosecutor committing the offence,
but, on the contrary, had ceased from the attempt and abandoned the
intention, which distinguished this case from R. v. Hunt {p). On a
case reserved, it was held that the prisoner might lawfully be apprehended,
for as he was seen in the board-house, and was taken on fresh pursuit
before he had left the neighbourhood, it was the same as if he had been
taken in the outhouse, or in running away from it {q).

In R. V. Gardiner (r), upon an indictment for maliciously wounding, it
appeared that the prisoner, with several other persons, was found by J.,
a constable, playing at thimblerig and betting with the people at a fair {s),
in the afternoon. J. having received verbal instructions from the magis-
trates to apprehend such offenders, tried, with the assistance of another
person, to apprehend the prisoner and his companions, and succeeded in
taking one, but the prisoner and two others of the company fell upon J.,

(p) 1 Mood. 93 a»fe p. 727. IV. c. 83), s. 4, ' every person playing or

(}) 1 Mood. 207. See the remarks of betting in any street, road, highway, or

Denman, C.J., in Baynes v. Brewster, other open and pubUo place, at or with any

i\ 1 M A Qon ^^^^^ ""^ instrument of gaming, at any

(r) 1 Mood. 390. game, or pretended game of chance, shall

(s) By the Vagrancy Act, 1824 (5 Geo. be deemed a rogue and vagabond,'

CHAP. I.] Of Resistance to the Law. 733

rescuing their companion, and got away themselves. About nine o'clock
in the evening, J., not having been able to find the prisoner before,
saw him with several of his companions in a public-house, and said to
him, ' You are my prisoner/ The prisoner asked ' For what ? ' and J.
replied, for what he had been doing in the fair ; the prisoner resisted, and
a scuffle ensued ; the prisoner escaped and concealed himself in a privy
in the garden. J. called another constable to his assistance, and they
together broke open the privy door and endeavoured to take the prisoner,
upon which he took a knife out of his pocket and stabbed the other
constable. The jury found that the prisoner knew that the constable was
endeavouring to take him for the offence conimitted at the fair ; but upon
a case reserved, the judges held that the attempt to apprehend was not
lawful under the Vagrancy Act, as it was not made on fresh pursuit (t).

Poaching Cases. — There have been several decisions arising out of the
exercise or attempted exercise of the powers given by the Night Poaching
Act, 1828 (9 Geo. IV. c. 69), to arrest poachers when three or more are
found in the night committing an offence under that Act [u). The powers
maybe exercised by the owner or occupier of the land on which the poachers
are found committing the offence {v), or persons having rights of free
warren or free chase thereon or the lord of the manor wherein the land lies,
and by the gamekeepers (w), or servants of such persons or any person,
assisting them (sect. 2), and if the offence is indictable, e.g., under sect. 9, as
to three 'or more persons armed poaching by night (x), by any person
whether a constable or not (14 & 15 Vict. c. 19, s. 11). The power of

(t) See s. 6 of the Act. the prosecutor, knocked him down and
(u) Post, vol. ii. p. 1338. stunned him ; when he recovered himself
(v) R. V. Warner, 1 Mood. 380. In this he saw all the men coming by him, and one
case the prosecutor, being out on duty at said, ' Damn 'em, we have done 'em both ' ;
night as gamekeeper with his assistant on they had got two or three paces beyond
his master's manor, heard shots towards a him, and one of them turned back and
wood not belonging to his master, and struck the prosecutor a violent blow on
shortly afterwards saw the prisoners the left leg with what he thought was a
coming along a road in the direction from stick, which wounded him in the leg ; the
the wood ; the prisoners were armed with prosecutor had committed no assault on
a gun, gun- barrel, and bludgeons ; they either of the four men. The assistant took
stopped when they saw the prosecutor and hold of the gun to prevent the man's run-
his assistant ; the prosecutor and his assis- ning away, but did not tell him so ; he took
tant advanced towards the prisoners, when hold of it to let the keeper see if he knew
the prosecutor said : ' So, you have been the men ; the manor, in which the wood
knocking them down ; you are a pretty set was, extended more than 200 yards beyond
of people to be out so late at night ' ; they where the prisoners were seen. It was
were then about three yards off ; the prose- objected that the prisoners were on the
cutor said to his assistant, sufficiently loud high road, and the prosecutor and his
for the prisoners to hear, ' Mind him with assistant had no right to obstruct them,
the gun ' ; the assistant took hold of the gun BoUond, B., overruled the objection, and
gently, one hand on the stock the other on directed the jury that if the prisoners acted
the barrel, and took off the cap gently ; in concert, all were equally guilty. They
there was no struggle ; the man did not were found guilty, and upon a case re-
seem angry at the assistant's holding the served, the conviction was upheld. Cf. R.
gun ; the prosecutor saw one of the priso- v. Edmeads, 3 C. & P. 390.
ners, and advanced to look at the faces of (w) This includes a person appointed,
the other two, but they bounced off. The even without written authority, to watch
prosecutor then turned back towards his for night poachers. R. v. Price, 7 C. & P.
assistant and the man who had the gun, 178.

and called out as loud as he could : ' For- (x) i.e., between the expiration of the

ward, G.' G. was the keeper of the manor first hour after sunset and the beginning of

in which the wood was situate, but he was the last hour before sunrise (s. 12). R. v.

not there. Three of the men ran in upon Tomlinson, 7 0. & P. 183.

734 Of Homicide. [book ix.

arrest under the Act of 1828 extends in case of pursuit to any other place
to which the offender escapes {y), or on the road on which he is found {z).
Persons seeking to arrest in lawful exercise of these powers are within the
special protection of the law, and if a gamekeeper is killed in a lawful
attempt to apprehend, the offender will be guilty of murder, though the
keeper had previously struck the offender or one of his party, if he struck
in self-defence only, and to diminish the violence illegally used against
him, and not vindictively to punish {a).

But if a keeper is killed in an attempt to arrest a poacher without
lawful authority, the offence is only manslaughter (&), and the same would
be the case if the keeper was servant of the owner of the game, but not
of the owner of the land, &c. (c).

Notice of the Authority and Business of the Officer. — To make the
killing of an officer of the law or person acting in aid or execution of the
law murder under the circumstances dealt with in this section, the person
whose liberty is interfered with and those who interfere to resist such
officer or person must have actual knowledge or express or implied
notice {d) of the officer's status and business (e). Where a bailiff pushed
abruptly and violently into a gentleman's chamber early in the morning
to arrest him without announcing his business or using words of arrest,
and the gentleman in the first surprise snatched down a sword and killed
the bailiff, not knowing him to be an officer of the law, the killing was ruled
manslaughter (/). But where a man said to a bailiff, who came to arrest
him : ' Stand off, I know you well enough, come on at your peril,' and on
the bailiff taking hold of him, ran the bailiff through and killed him, it
was held murder [g). Where, of a number of persons concerned in killing
an officer in the execution of his duty, some have notice of his status and
others have not, the former may be guilty of murder and the latter of
manslaughter Qi), unless they deliberately engaged in the fray meaning
to make common cause and maintain it by force {i).

In some cases the circumstances of the case render notice unnecessary,
e.g., where an attempt is made to arrest a man while committing an offence
or on fresh pursuit (j).

(y) E. V. Price, iCbi supra, where the the officer and slays him, it is murder,

prisoner who on pursuit had escaped from though he knew him not. 1 Hawk. c. 31,

a wood within a manor (not in the owner- s. 57. 1 Keb. 87. Young's case, 4 Co.

ship or occupation of the lord of the Rep. 40 6. If the party to be arrested had

manor), but being hard pressed, fied back notice of the officers' authority, the

into the manor and there attempted to fire theory is that the slayer is hable because

a loaded gun at his pursuers. he set himself against the justice of the

{z) 9 Geo. IV. c. 69, s. 2 ; 7 & 8 Vict. realm. But implied notice at least seems

c. 29, a. 1. As to the powers of constables necessary, though not actual knowledge,

to take poachers, see 25 & 26 Vict. c. 114. See 1 Hale, 438.

(a) E. V. Ball, 1 Mood. 330; vide E. v. (e) 1 Hale, 458. 1 Hawk. c. 31, ss. 49,
Payne, 1 Mood. 378. R. v. Taylor, 7 C. 50. Fost. 310. Maokalley's case, 9 Co.
& P. 266. Rep. 65 b, 69 b.

(b) E. V. Addis, 6 C. & P. 388, Patteson, (/ ) 1 Hale, 470. Case at Newgate [1667],
J. R. V. Davis, 7 C. & P. 785, Parke, B. Kel. (J.) 136.

R. V. Wesley, 1 F. & F. 528. {g) Pew's case, Cro. Car. 183. 1 Hale,

1 F. & F. 470. (h) 1 Hale, 438, 446, 461. Kel. (J.) 115,

id) 1 East, P. C. 316. In some of the 116.

earlier books it is said that if the servant (i) Vide ante, p. 112.

or friend of a person sought to be arrested [j) R. v. Howarth, 1 Mood. 207, ante,

by an officer of the law, takes part against p. 732. R. v. Woolmer, 1 Mood. 334.

CHAP, t] Of Resistance to the Law. 735

The same principle applies where persons other than officers of the law
are seeking to make an arrest which by common law or statute they are
empowered to make.

Thus where upon an indictment for malicious wounding, it appeared
that the assistant to the head keeper of Sir R. S. went Avith five or six
assistants towards a covert of Sir R. S., where they heard guns ; they then
went towards the place, and rushed in at the poachers to take them ;
the prosecutor saw six persons in the wood, and he ran after them ; they
got into a field about six yards off ; they then ranged themselves in a row,
the prosecutor being five or six yards from them, on the edge of the
plantation, and he heard one of them say : ' The first man that comes out

I'll be d -d if I don't shoot him ' ; upon which the prosecutor drew his

pistol, cocked it, and ran out : they all ran away together ; the prosecutor
followed them, and when they had all run about fifty yards they stood ;
they had all turned round ; one of them shot at the prosecutor, who was
running to him ; the prosecutor was wounded ; the men said nothing to
the prosecutor before he was shot, nor he to them ; it was objected, that,
inasmuch as the prosecutor's authority to apprehend them was derived
from the act creating the offence, it was incumbent upon him to give
notice to them : the objection was overruled : and, upon a case reserved,
the judges were of opinion that the circumstances constituted sufficient
notice (k). So where a servant of Sir T. W. was out with his gamekeeper
at night, and they heard two guns fired, and went towards the place,
and got into a covert, and saw some men there who ran away, and the
setvant pursued them, and got close up to one of them, and made a catch
at his legs, and was immediately shot in the side ; Parke, B., said : ' Where
parties find poachers in a wood, they need not give any intimation by
words that they are gamekeepers, or that they come to apprehend ;
the circumstances are sufficient notice. What can a person poaching
in a wood suppose when he sees another at his heels ? ' (l).

Where officers of the law intervene to preserve the peace or make
arrests, their functions may be indicated by their uniform or production
of their official staves, or any other known ensign of authority {m), e.g.
warrant cards, or by their commanding the peace, or declaring their office
and saying that they arrest in the King's name (n), or by producing a
warrant or writ from a Court or magistrate or in some other way indicating
their status and the purpose of their intervention. Where the officer is
in his own district and his official capacity is known, or generally
acknowledged, or if he is in uniform, the law will readily presume
notice of his capacity and the purpose of his intervention (o).

Notification by implication of law is held to have been given where the
officers have warrants directed to them as such. Thus, where a warrant

{h) R. V. Payne, 1 Mood. 378. See R. neoeaaarily to the party) acting in his own

V. Fraser, 1 Mood. 419, ante, p. 731. district ia aaid not to be bound to ahew his

(Z) R. V. Davis, 7 C. & P. 785, Parke, B. warrant of appointment. 1 Hale, 458, 462,

See R. V. Taylor, 7 C. & P. 266, Vaughan, J. 583. 9 Co. Rep. 65 i, 69 u. But he

(m) Foat. 311. must shew hia writ or warrant against the

(n) 1 Hale, 583. party to be arrested if he needs one to

(o) Post. 310, 811. Sissinghurst House justify the arreat. See 6 Co. Rep. 54 a.

case, ante, p. 721. A public bailiff juratus 9 Co. Rep. 69 a. 1 East, P. C. 319.

et cognitus (i.e., known in the district, not

736 Of Homicide. [book ix.

had been granted against the prisoner by a justice of peace for an assault,
and directed to the constable ofPattishal, and delivered by the person wbo
had obtained it to the deceased, to execute as constable of the parish,
and it appeared that the deceased went to the prisoner's house in the
daytime to execute the warrant, had his constable's staff with him, and
gave notice of his business, and further, that he had before acted as
constable of the parish, and was generally known as such : this was held
sufficient evidence and notification of the deceased being constable,
although there was no proof of his appointment, or of his being sworn into
the office (p).

To make it murder to kill a private or special bailiff or officer in resisting
arrest the party must know or be notified of the officer's status and his
warrant of appointment should be shewn, but need not be parted with as
it is his justification {q) and information given as to the legal process which
he is seeking to execute (r). In the night-time further notification is
necessary, but commanding the peace or using words notifying his busi-
ness are sufficient, whether the officer is acting in execution of civil or
criminal process, &c. (s).

Mode of executing Legal Authority. — Ex hypothesi, the authority which
the officer, &c., seeks to exercise must be one given by law, whether it be
exerciseable without judicial warrant at common law or by statute, or be
given by judicial warrant : and it must be executed in a regular and lawful
manner, whether as to the arrest, detention, or treatment of the persons
whose liberty is interfered with. If an officer attempts to make an arrest
out of a district in which he is authorised to act, or out of the jurisdiction
of the Court from which the process issued, or without any legal warrant
or justification and a struggle ensues in which he is killed, the killing is
manslaughter only (t). Instances of this are where process is executed
out of the jurisdiction of the Court which issued it (u), or an arrest is
made on a Sunday, or an attempt is made to execute in an exclusive
liberty a writ not containing a non omittas clause (v), or in a case where it
is not permitted by law (w). Execution of process within the jurisdiction
of the issuing Court is sufficient at common law, though it is outside the
district of the officer to whom it is directed by name (x), and process may

(p) R. V. Gordon [1789], 1 East, P. C. («) 1 Hale, 458, 459. 1 East, P. 0. 314.

315. R. V. Cumpton, 5 Q.B.D. 341, post, p. 740.

(?) 1 Hale, 458, 459, 461, 483. Mack- (v) R. v. Mead, 2 Stark. (N. P.) 205.

alley's case, 9 Co. Rep. 65, 69 b. 1 East, {w) 1 East, P. C. 324, 325. Rawlins v.

P.C. 319. Ellis, 16 M. & W. 672. The only warrants

(r) 1 Hale, 458, note {g). 6 Co. Rep. which may be executed on Sunday are for

54 a. Maokalley's case, ubi supra. treason felony or other indictable offences :

{«) Maokalley's case, ubi supra. 29 Car. II. c. 7. Warrants for indictable

(0 1 Hale, 457, 458, 459. 1 Hawk. c. 31, offences and search warrants may be issued

S3. 27, 30. Fost. 312. 1 East, P. C. 312. on Sunday, 11 & 12 Vict. c. 42, s. 4.

314. Thus a search warrant headed Wilts [x) 1 Hale, 459. 2 Hawk. o. 13, ss. 27,

to wit, and directed to the constable of 30. 1 East, P. C. 314. At common law,

Bauntsey was held not to have been law- if it was addressed to a man as constable of

fully executed by a county police officer C. he could execute it only in C. R. v.

appointed under 2 & 3 Vict. c. 93, s. 8, and Chandler, 1 Ld. Raym. 545. R. v. Weir,

attached to the district in which Daintrey 1 B. & C. 288. Under 11 & 12 Vict. c. 42,

lay. Freegard v. Barnes, 7 Ex. 827. See a. 10, and 11 & 12 Vict. c. 43, a constable

R. V. Saunders, L. R. 1 C. C. R. 75, may execute a warrant out of his precinct

where a warrant directed to a parish con- at any place in the jurisdiction of the

stable was held not to authorise arrest by magistrate who granted it.
an officer of the county police.

[CHAP. I.] Of Resistance to the Law. 737

be executed by nigbt as well as by day {y). The execution of justices'
warrants by police officers, &c., is now in the naain regulated by 11 & 12
Vict. c. 42, ss. 10, 11, as to indictable offences, and by 11 & 12 Vict. c. 43,
s. 3, as to offences punishable on summary conviction (z). These enact-
ments provide for the execution of warrants out of the county in which
they are issued, after backing by a justice of the county in which they
are to be executed (a).

Execution of Warrants. — Arrest on a warrant for misdemeanor is not
legal unless it is effected by or in the presence of (6) the person named or
designated thereon and he has the warrant with him (c) for production if
required {d).

Upon an indictment for maliciously wounding, it appeared that a
constable having a warrant to apprehend P, gave it to his son, who went
in pursuit of P. in company with his brother ; the father staying behind.
They found P. lying under a hedge, and when they first saw him he had a
knife in his hand running the blade of it into the ground. He got up from
the ground to run away, and the son laid hold of him, and he stabbed the
son with the knife ; the father was in sight at about a quarter of a mile off.
Parke, B., said : ' The arrest was illegal, as the father was too far off to be
assisting in it ; and there is no evidence that the prisoner had prepared
the knife beforehand to resist illegal violence. If a person receives
illegal violence, and he resists that violence with anything he happens
have in his hand, and death ensues, that would be manslaughter. If the
prisoner had taken out this knife on seeing the young man come up, it
might be evidence of previous malice, but that is not so, as we find that
the knife was in his hand when the young man first came in sight ' (e).

Where a warrant for felony has been issued, an officer who knows of
its issue may effect arrest though he has not the warrant (/). Where
several persons are named or designated in a warrant any one of them
may execute it {g). It has been held that a warrant directed to a constable
of G. could not legally be executed by a county police officer {Ti).

As no time is usually prescribed for the execution of a warrant it
continues in force till fully executed {i), even if the issuing justice dies (j),

(y) 9 Co. Rep. 66 a. 1 Hale 457. 1 Ex. D. 352, a warrant for trespass in

Hawk. c. 31, s. 62. pursuit of rabbits.

(z) C. 43 repeals 5 Geo. IV. o. 18, which (d) In Galliard v Laxton, 2 B. & S. 363,

altered the common law as declared in R. there was a warrant of arrest for disobeying

1). Weir, 1 B. & C. 288. Neither Act applies to a bastardy order. Arrest by a constable

warrants issued by judges of the High Court : on the warrant was held illegal, the warrant

Gladwell v. Blake, 5 Tyrw. 186. at the time of the arrest being at the police

(a) 11 & 12 Vict. 0. 42, ss.12-14; 11 & station. The Coiut erroneously referred

12 Vict. c. 43, ss. 3, 37 ; 14 & 15 Vict. c. 55 to 5 Geo. IV. c. 18 as still in force,
s. 8 ; 14 & 15 Vict. c. 93, s. 27 (I) ; 30 & 31 (e) R. v. Patience, 7 C. & P. 775.

Vict. c. 19, s. 1 (I) ; 44 & 45 Vict. o. 24, s. 4 (/) Creagh v. Gamble, 24 L. R. Ir. 458.

(B, S). See R. v. Cumpton, 5 Q.B.D. 341. In such a case he is really exercising his

(5) Actual or constructive presence of a common-law power to arrest on suspicion

person named or designated is necessary. of felony.
R. V. Whalley, 7 C. & P. 245. In Blatch v. (g) 1 Hale, 459.

Archer, ICowp. 63, Aston, J., said: 'Itisnot (h) R. v. Saunders, L. R. 1 0. C. R. 75.

necessary that the bailiff should be actually Parish constables are now rarely designated

in sight, but he must be so near as to be to execute warrants for offences,
near at hand, and acting in the arrest.' (i) Dickenson v. Brown, Peake, 234,

Carey, 14 Cox, 214. Codd V. Cabe, 1 (?) 42 & 43 Viot. c, 49, s. 37.

VOL. I.

738 Of Homicide. [book ix.

and on an indictment for maliciously wounding A. with intent to resist
lawful apprehension, it appeared that the prisoner had been arrested
on a warrant on a charge of assault and had been brought before a magis-
trate and ordered to find bail, which he refused to do. An order was then
made for his commitment. While the commitment was being made out
the prisoner escaped, and on A. following him by verbal direction from the
justices and their clerk, the prisoner cut A. with a knife. Gaselee, J.,
ruled that the warrant continued in force and a conviction was upheld
on a case reserved (it).

Where the warrant is good on the face of it, and for an offence within the
jurisdiction of the issuing magistrate, the officer executing it is protected
irrespective of the truth or falsity of the charge upon which the warrant
was granted (Z). Warrants issued by magistrates, &c., acting by special
statutory authority and out of the course of the common law ought to
shew on the face of them by direct averment or reasonable intendment the
authority of the magistrate (m).

Where an officer endeavouring to execute process is resisted and
killed, the crime will not amount to murder, unless the process is legal ;
but by this is to be understood only that the process, whether by writ or
warrant, must not be defective in the frame of it, or bad on the face of itj
and must issue in the ordinary course of justice from a Court or magistrate
having jurisdiction in the case (n). Therefore, though there may have
been error or irregularity in the proceeding previous to the issuing of the
process, it will be murder if the sheriff or other officer should be killed in
the execution of it ; for the officer to whom it is directed must at his peril
obey it (o).

If a capias ad satisfaciendum, fieri facias, writ of assistance, or any
other writ of the like kind is issued, directed to the sheriff, and he or any
of his officers are killed in the execution of it, it is sufficient, upon an
indictment for this murder, to produce the writ and warrant {p), without
producing the judgment or decree (q). Upon an indictment for assaulting
E. in the execution of his office of sub-bailiff of a County Court, it appeared
that the prisoner was arrested by E. under a warrant issued in the form
authorised by 19 & 20 Vict. c. 108, s. 61 (r) for not having satisfied a
judgment and costs. On a case reserved, it was held that the previous
proceedings in the County Court need not be proved ; for the process of

(k) R. V. Williams, 1 Mood. 387. Accord- but that which is expressly so alleged. See

ing to Hawkins (Bk. 2, c. 13, s. 9), if a Howard v. Gosaett, 10 Q.B. 452, Parke, B.,

constable, having arrested a man on a, and cases there cited,

warrant, lets him go at large on a promise (») Post. 311. E. v. Baker, 1 Leach,

to return, he oaimot re-arrest on the same 112. 2 Hawk. u. 13, s. 10. Though the

warrant, but can lawfully hold him under magistrate may be liable to action for

the warrant if he voluntarily returns into issuing the process, the constable may still

custody. be protected.

(;) Shergold v. Holloway, 2 Str. 1002. (o) Fost. 311. 1 Hale, 457.

See 1 East P. C. 310. (p) It would seem that the writ must be

(to) The rule for junsdiotion ia that produced as well as the sheriff's warrant to

nothmg shall be intended to be out of the the bailifif. B. o. Mead, 2 Stark. (N. P.)

jurisdiction of a superior Court acting ao- 205, an arrest on mesne process,

cording to the course of the common law (q) Roger's case, 1735, Lord Hardwicke.

but that which specially appears to be ao, Fost. 311, 312.

and that nothing shall be intended to be (r) Repealed by the County Courts Act,

within the jurisdiction of an inferior Court 1888 (51 & 52 Vict. o. 43).

CHAP. I.] Of Resistance to the Law. 739

the County Court was as much a justification to the officer by virtue of
the Act, as a writ of execution out of a superior Court to a sheriff (s). And
on an indictment for assaulting B., a messenger of a district Court
of Bankruptcy, it appeared that B., in consequence of information
that certain ironstone belonging to J. and 0. who were bankrupts was
lying in a boat, obtained a warrant from two justices to search for the
property of J. and 0., and went with this warrant to search the boat,
whereupon the assault was committed. Erie, J., held that it was un-
necessary to shew the validity of the proceedings prior to the grant of the
justices' warrant (<). So, even if the warrant of a justice of peace is not
in strictness lawful, e.g., if it does not express the cause with sufficient
particularity ; yet, if the matter is within his jurisdiction, the killing of
the officer executing the warrant will be murder {u). In all cases of
process, both civil and criminal, the falsity of the charge contained in
such process does not excuse or extenuate killing the officer ; for every
man is bound to submit himself to the regular course of justice {v).
Thus the person executing an escape warrant was held to be under the
special protection of the law, though the warrant had been obtained by
gross imposition on the magistrate, and by false information as to the
matters suggested in it (w).

A sergeant at mace in the City of London having authority, accordipg
to the custom of the city, by entry in the porter's book at one of the
counters {x), to arrest M. for debt, arrested him between five and six in
the evening of November 8, saying at the same time, ' I arrest you in the
King's name, at the suit of E.' ; but he did not produce his mace. M.
resisted, and one of his companions killed the officer. Upon a special
verdict it was urged that the arrest in the night was illegal, that the
sergeant should have shewn his mace, and that a custom stated in the
verdict to arrest without process first against the goods was illegal : but
the objections were overruled [y).

A justice for the county of Herts issued his warrant, directing a
constable to arrest J. H., charged with stealing a mare. Armed with this
warrant the constable went to Smithfield in the City of London, and
there arrested R. H., who was the party against whom information had
been given, and against whom the magistrate intended to issue his warrant
and who was supposed to be called J. H. ; his name, however, was really
R. H., J. H. being the name of his father. There was no proof that a
felony had been committed. The person who made the charge before the
justice pointed out R. H. as the man who had stolen the mare, and a
person present said that his name was J. H., and there was clearly evi-
dence to go to the jury that R. H. was the man intended to be taken up.
Coltman, J., told the jury that the law would not justify the constable's

(«) R. V. Davis, L. & C. 64, WUliams, J. o. 31, s. 64. Fost. 312. 1 East, P. C. 310.

(t) B. V. Roberts, 4 Cox, 145. His ruling Sir Henry Ferrers' case, Cro. Car. 371.
was based on 6 Geo. IV. c. 16, s. 29, re- (v) 1 East, P. C. 310.

pealed in 1849 (12 & 13 Vict. o. 106). (w) Curtis's case, Post. 135. And see

(«) 1 Hale, 460. It is said, however, Fost. 312.
that this must be understood of a warrant (x) Prisons attached to the Sheriff's

containing all the essential requisites of Courts for the City, courts now repre-

one. 1 East, P. C. 310, and see R. v. Hood, sented by the City of London Court,
pos*, p. 740 note (z). 1 Hale, 457.- IHawk. (y) Mackalley's case, 9 Co. Rep. 65 6.

O B 4U

740 Of Homicide. [book ix.

act, tlie warrant being against J. and not against E., although R. was the
party intended to be taken ; that a person cannot be lawfully taken under
a warrant in which he is described by a name that does not belong to him,
unless he has called himself by the wrong name. The direction was held
right {z).

Where a constable of the county of Worcester apprehended a man in
the city of Worcester under a warrant issued by county justices and not
backed by any justice for the city (which has a separate commission),
and not after a pursuit out of the county, it was held that the arrest was
illegal (a).

A warrant which commanded the constable to apprehend a prisoner,
and bring him before a justice ' to answer to all such matters and things
as on Her Majesty's behalf shall be objected against him on oath by
M. A. W., for an assault committed on her ' ; was held bad, for it did not
state any information on oath that any assault had been committed (6).
And where a warrant of a judge of the Court of Queen's Bench directed
certain officers to apprehend a person ' and him safely keep, to the end
that he may become bound and find sufficient sureties to answer ' an
indictment for a conspiracy, ' and to be further dealt with according to
law ' ; it was held bad for not directing that the party should be taken
before some judge or justice for the purpose of finding sureties (c).

Resisting Arrest or Detention Effected without Warrant.— An arrest
unlawfully made without warrant is not made lawful by a warrant
taken out afterwards [d).

A prisoner had produced a forged bank note ; and his conduct created
a suspicion that he knew it to be forged, he was apprehended, and delivered
with the note to a constable on a charge that ' he had a forged note in
his possession ' (e). While thus in custody he shot and wounded the
constable. On an indictment under 43 Geo. III., c. 58 (rep.), it was
argued that the charge imported no legal offence, and the arrest illegal, and
that killing the officer (if that had taken place) would have been only
manslaughter. But it was held that in such a charge the same pre-
cision was not required as in an indictment ; and that the charge must be
considered as imputing to the prisoner a guilty possession (/).

On an indictment of B. for wounding with intent to prevent his lawful
apprehension, Talfourd, J., held, that to support this charge it was enough

(2) Hoye V. Bush 1 M. & Gr. 775. He Bon intended could be distinguished. In a

also directed them that his powers as con- civil action a writ of execution must corrc-

stable to arrest without warrant were spondwith the judgment in the name of the

limited to the district for which he was defendant, although he is therein misnamed

chosen. As there was no authority to and the sheriff is bound notwithstanding

apprehend Eichard H. under the warrant, to execute the writ. Reeves v Slater 7

and the_ constable was out of his district, B. & C. 486. Fisher v. Ma^nav 6 Scott

he was in the same situation as a private (N. R.) 588.

individual. He might have defended him- (a) R. v. Cumpton 5 Q B D 341

self by proving that the felony had been (6) Caudle v. Seymour,! Q.B 889

committed by Richard H., see p. 780, (c) R. v. Downey 7 0 B 281

Tindal, C.J. In R. v. Hood, 1 Mood. 281, (V) 2 Hawk c 13 s 9

a warrant which directed the arrest (e) It does not state that the prisoner

f r.J°°i*°L.^-'f"^'' ^""^ ^^^^ ^^'^ knew the note to be forged, which is an

for omitting the Clinstian name without essential element in the offence,

assigning any reason for the omission, or (/) R. v. Ford. R. & R. 329, and MS

giving some particulars whereby the per- Bayley, J.

CHAP, i.i Of Resistance to the Law. 741

that B. was lawfully apprehended, and that the apprehension was in fact
lawful ; and that the question whether or not B. believed it to be lawful,
was irrelevant {g).

In R. V. Thompson (A), on an indictment for stabbing with intent to
murder, it appeared that the prisoner, a journeyman shoemaker, applied
to his master for some money, which was refused until he should have
finished his work ; and that he applied again subsequently, was again
refused, and became abusive, upon which his master threatened to send
for a constable. The prisoner then refused to finish his work ; and said
that he would go up stairs and pack up his tools, and that no constable
should stop him. He went up stairs, came down again with his tools,
and drawing from the sleeve of his coat a naked knife, said he would do
for the first constable that offered to stop him ; he was ready to die, and
would have a life before he lost his own. He then made a flourishing
motion with the knife, put it up his sleeve again, and left the shop. The
master then applied to the constable to take the prisoner into ciistody ;
making no charge further than saying that he suspected the prisoner had
tools of his, and was leaving his work undone. The constable said he
would take him if the master would give charge of him : and they pro-
ceeded together to the yard of an inn, where they found the prisoner in
a public privy, as if he had occasion there ; the privy had no door to it.
The master said, ' That is the man, and I give you charge of him ' ;
upon which the constable said to the prisoner, ' My good fellow, your
master gives me charge of you, you must go with me.' The prisoner,
without saying anything, presented the knife, and stabbed the constable
under the left breast, and attempted to make several other blows, which
the constable parried with his staff. The prisoner having been found
guilty, upon a case reserved, the majority of the judges (^) held, that as an
actual arrest would have been illegal, the attempt to make it when the
prisoner was in such a situation that he could not get away, and when the
waiting to give notice might have enabled the constable to complete
the arr.est, was such a provocation as, if death had ensued, would have
made the case manslaughter only ; and that therefore the conviction
was wrong {j).

Upon an indictment for maliciously stabbing with intent to do
grievous bodily harm, it appeared that the prisoners had attempted to
push a man into a ditch, upon which a scufile ensued. The prisoners
walked on, and a man complained to H., a watchman, that they had
attempted to rob him, desired him to arrest them, followed them tiU H.
came up to them, and then said, sufficiently loud for them to hear, ' That's
them.' There was no evidence of any attempt by the prisoners to rob the
man, and the only person who saw the transaction negatived it. When
H. came up to the prisoners, all he said to them was, ' You must go back
and come along with me.' He did not explain why, nor was any charge
against the prisoners stated. He was dressed in a watchman's coat, and
had his lantern. W., one of the prisoners, said, ' Keep oii,' and drew a

(9) R. V. Bentley, 4 C!ox, 408. Littledale, J., and Gaselee, J.

(h) I Mood. 80. {/) Holroyd and Btirrough, JJ., thought

(i) Abbott, C.J., Graham, B., Bayley, otherwise. See RafEerty d. The People, 69

J., Park, J., Garrow, B., Hulloek, B., 111. Ill ; 12 Cox, 617.

742 Of Homicide. tBOoK ix.

sharp instrument from his side ; the watchman said, ' It's of no use, you
must go back.' A third man put himself in a position as if to strike the
watchman, and W. made a spring at him, and caught one of the skirts of
his coat ; the watchman pulled out his staff, and turned at the prisoners,
and they came at him. The watchman struck at W., and hit him on the
thick part of the arm with his staff ; W. immediately stabbed the watch-
man, and another of the prisoners followed the watchman, and made
another blow at him with another knife. The place where the prisoners
attempted to push the man into the ditch was within the limits of the
hamlet, for which H. was watchman, but the place where he overtook the
prisoners did not appear to be within those limits. The jury found that
the prisoners knew H. to be a watchman. On a case reserved nine of the
judges held that the watchman could legally arrest the prisoners without
saying that he had a charge of robbery against them, though the prisoners
had in fact done nothing to warrant the arrest ; and that, had death
ensued, it would have been murder [k).

Upon an indictment for maliciously cutting W., it appeared that a
man travelling upon the highway told the constable that a man coming
along the road had been ill-using him, and charged the constable, in the
prisoner's hearing, to take the prisoner before a magistrate for so mis-
using him ; on which the constable ordered the prisoner to stop for
insulting a man on the road, laid hold of him, tapped him on the shoulder,
said he was his prisoner, and that he should take him to a magistrate, and
ordered W. to assist him, which W. did, and to which the prisoner sub-
mitted. No particulars of what the supposed ill-usage or insult consisted
of appeared in evidence, nor did they pass in the constable's view or
hearing, and therefore the apprehension and detainer appeared clearly
thus far to have been unlawful. Afterwards, and whilst the prisoner was
thus in custody, and before they found a magistrate, the prisoner, in the
constable's presence, struck the man who had made the charge against
him, and the constable then also told the prisoner he should take him
before a magistrate. Some time afterwards, as they were proceeding
along to a magistrate's, the prisoner ran away, and attempted to escape,
but was pursued by W. by the constable's order ; and being overtaken by
him, refused to stop, asking W. where his authority was, who said it was
in his hand, alluding to a stick, which W. then had in his hand, and which
the prisoner had given up to him at the commencement of the detainer ;
and without further information, when W. was going to take hold of him,
the prisoner told him if he would not let him go he would stab him, and
then gave him the cut in the face, for which he was indicted. On a case
reserved the judges held that the original arrest was illegal, and that the
recaption would have been illegal, and therefore the case would not have
been murder if death had ensued {J).

Where on an indictment for wounding with intent to disable, it
appeared that the prosecutor was a sergeant of police and the prisoner
a constable under him, and that the prosecutor went, as it was his duty,

[k) R. V. Woolmer, 1 Mood. 334. Four quet, JJ.
judges were of ar contrary opinion, viz., (I) E. v. Curvan, I Mood. 132.

Bayley, B., Park, Littledale, and Boaan-

CHAP. 1.] Of Remtance to the Law. 743

to the house of the prisoner to see that he was correct in the discharge of
his duty, and the prisoner had some altercation with him, and the prose-
cutor left the house, the prisoner followed and struck him, and fell when
attempting to strike him a second time, and the prosecutor then went
away for assistance, and returned to the prisoner's house with two police
constables, when the prisoner was not at home : they returned again
in two hours and saw him, and the prosecutor told him he must go with
him to the station ; the prisoner said he would not stir an inch that night ;
the prosecutor attempted to take hold of him, whereupon the prisoner
inflicted a severe wound upon him ; and the jury found him guilty
of wounding with intent to prevent his apprehension. Upon a case
reserved, it was held, that the apprehension was not lawful ; for the
assault was committed at another time, and there was no probability of
its being renewed (m).

Upon an indictment for assaulting a police officer in the execution of
his duty, it appeared that the officer was informed that a disturbance
was going on at P., and going there found the prisoner's wife sitting
crying under a hedge opposite their cottage and went with her into the
cottage, and found the prisoner intoxicated, but sufficiently sober to
know what he was doing. In his hearing, the wife stated to the officer
that the prisoner had knocked her down and beaten her shamefully.
One C. was present and stated that (as was the fact) he had seen the
prisoner knock his wife down and jump upon her. The prisoner said
nothing on hearing these statements. The officer left the cottage, and
the prisoner and his wife in it. The prisoner then closed the shutters and
locked the door. The officer heard the prisoner using threatening lan-
guage to his wife, and saw her run out of the cottage. The prisoner said
he would lock her out all night, and thereupon she returned to the cottage.
The officer heard the prisoner again use very violent language and opened
the shutters, and saw the prisoner take up a shovel and hold it in a
threatening attitude over his wife's head, and heard him say, ' If it was
not for the bloody policeman outside I would spht your head open, for
'tis you that sent for the policeman.' The prisoner was near enough to
have struck his wife when he raised the shovel. Shortly afterwards he
desired her to go to bed, and she replied, ' I can't go up stairs in this state ;
I don't know one hour from another when I might be murdered.' Prisoner
said with an oath, ' I'll leave you altogether,' and went out. This was
about twenty minutes after he had raised the shovel. He went on the
highway towards his father's house, and when he had walked about
seventy yards from his cottage, the officer took him into custody. He
had no warrant. C. had been with the officer all the time these things
occurred, and insisted upon his taking the prisoner into custody, because
he thought it would not be safe to let him go back to his wife that night.
The prisoner, on being taken into custody, assaulted the officer. And,
upon a case reserved, it was held that the officer was in the execution of
his duty when he was assaulted. It is not necessary that a policeman
should arrest a man at the very moment he sees an assault committed ;
it is quite sufficient if he arrests recently after the right to do so arises,

(m) R. V. Walker, Dears, 358. Cf. R. v. Maraden, L. R. 1 C. C. R. 131.

744 Of Homicide. [Book ix.

It could not be said that because the prisoner was going away from the
house the constable was bound to come to the conclusion that the danger
was over. As a conservator of the peace, he had authority to take the
prisoner into custody, having so recently witnessed the commission of an
assault. Here there was a continuing danger and a continuing pursuit,
and it was the duty of the officer to exercise his authority in this case in
order to prevent a further breach of the peace, and also that the prisoner
might be dealt with according to law in respect to the assault he had
so recently committed (w).

Disturbances on Private Premises. — In the execution of their duties as
peace officers constables are not confined to disturbances, &c., on highways
or in public places. If a person goes into a house or is in it and makes
a noise or disturbs the peace of the family, even if no assault or battery
has been committed, the master of the house may call in a policeman to
turn the disturber out (o) : » fortiori if a serious fight or attempt at
fighting is going on in the house. The police have power under statute
to enter licensed refreshment houses (p) and to enter licensed public-houses
to prevent or detect any violation of the Licensing Acts (g'), 1872 and 1874,
if he has reasonable grounds of suspicion (r). Apart from these statutes,
if a police officer hears a disturbance in a public house at night and the
door is open he may enter (s), but has no authority to turn anyone out
of a public-house unless he has committed an offence punishable by the
law {t) : nor to prevent a guest from going to a room in the house unless
a breach of the peace is likely to occur (u). He may, however, turn
Out a person who in a public-house makes a noise and disturbance
calculated to alarm the neighbourhood {v), and if he will not go quietly
away may arrest him (v).

A policeman between eleven and twelve o'clock at night was called
upon to clear a beer-house, which he did, and then went into the street
where the prisoner and many others were standing near the door. The
prisoner refused to go home, and used very abusive and violent language,
and the poUceman laid his hand on his shoulder gently, and told him to
go away, on which the prisoner immediately stabbed him with a knife in
the throat. It was held that if the pohceman had died, this would have
been murder ; for if a pohceman had heard any noise in the beer-house
at such a time of night, he would have acted within the line of his duty
if he had gone in and insisted that the house should be cleared ; and

(n) E. V. Light, Dears & B. 332. force, at all times enter any licensed pre-

(o) See Shaw v. Chairitie, 3 C. & K. 21, mises or any premises in respect of which

Campbell, C.J. In this case the butler in an occasional licence is in force, and penal-

u, house had quarrelled with the coachman, lies are incurred by refusino- or faihng to

and abused and assaulted the master of the admit a constable who in the execution of

house^ Cf. Wheeler v. Whiting, 9 C. & P. his duty demands to enter. See also Sea-

262, Patteson, J. Howell v. .Tackson, 6 C. ley v. Tandy [1902]. 1 K. B. 296.

& P. 723, Parke, B. These were cases of (r) Duncan v. Dowdie [1897] 1 Q B 575.

turmng quarrelsome persons out of public- («) R. v. Smith, 6 C. & P. 136 Tindal

^7"f •„„,„., „, ,„ C.J. See35&36Vict.c.94,ss. 18,2,S:37&

ip) 23 & 24 Vict. c. 27, s. 18. 38 Vict. o. 49, .■>. 16.

(?) 37 & 38 Vict. c. 49, s. 10, under whieh (t) Wheeler v. Whiting, ubi supra.

any constable may for the purpose of pre- (u) R. v. Mabel, 9 C. & P. 474.

venting and detecting the violation of any {v) Howell v. Jackson, 6 C. & P. 723

of the provisions of the Licensing Acts, Parke, B. ' '

1872 and 1874, which it is his duty to en-

CHAP. 1.] Of Resistance to the Law. 745

much more so, if lie was required by the landlady ; and after that was
done, if a knot of people remained in the street, and the crowd increased
in consequence of their attention being drawn to the clearing of the house,
and if anything was saying or doing likely to lead to a breach of the peace,
the policeman was not only bound to interfere, but it would have been
a breach of his duty if he had not done so, and if in so doing he ordered
the people to go away, and any one was unwilling, and defied the police-
man, and used threatening language, the policeman was perfectly justified
in insisting upon that person going off ; and if he had warned him several
times, and he would not go away, and used threatening language if anyone
ventured to touch him, the policeman was entirely justified in using a
degree of violence to push him from the place, in order to get him to go
home ; and therefore anything that he did would not be in the nature
of an assault, but would be an act in the discharge of his duty, and there-
fore any blow that was given afterwards with a cutting instrument would
be precisely the same as if it had been given without anything being done
by the policeman {w).

Upon an indictment for assaulting a policeman in the execution of
his duty, it appeared that the pohceman was called into a public-house
to put an end to a disturbance which the defendant was making ; he and
the landlady were at high words ; W. L. interfered, and the defendant
was in the act of squaring at him when the policeman desired the defendant
not to make a disturbance ; the defendant, who was at the side of the bar,
then attempted to go into the parlour, in which a person was sitting ; as
the defendant attempted to go into the parlour, the policeman collared
him, and prevented him going in ; he then struck the pohceman ; neither
the landlord or landlady had desired the pohceman to turn the defendant
out of the house. Parke, B. : ' The policeman had a right to be in the
house without being called upon either by the landlord or landlady to
interfere, but under the circumstances he had no authority to lay hold of
the defendant, unless you are satisfied that a breach of the peace was
likely to be committed by the defendant on the person in the parlour ;
and if you think it was not, it was no part of the policeman's duty to
prevent the defendant from going into the parlour' {x).

Breaking Doors or Windows.^The right of officers of the law and
others to break the doors and windows of dweUing houses or other build-
ings in order to make an arrest, execute process, or preserve the peace,
may be thus stated. Where the right exists it may not be exercised unless
there has been a notice of the business on which the officers are come, a
demand to enter and a refusal to admit {y). No precise words are needed
but enough to give notice that entry is sought under proper authority (2).

A. Criminal Cases. — Where treason or felony has been committed, or a
dangerous wound given, the offender's house is no sanctuary for him ;

(w) R. V. Hems, 7 C. & P. 312, Williams, Burdott, r. Abbott, 14 East, 157.

J. (z) Cf. R. v. Curtis, Fost. 135. In this

(x) R. V. Mabel, 9 0. & P. 474, Parke, B. case two officers went with an escape war-

iy) Fost. 320. 2 Hawk. c. 14, s. 1. 1 rant to the workshop of A. to arrest him.

East, P. C. 324. The rule applies in mis- They told him of the warrant, demanded

demeanors and apparently in all criminal entrance, and on their breaking in, one was

cases. Launook p. Broivn, 2 B. & Ad. 592. killed.

746 Of Homicide. [book ix.

and the doors may be forced, after notification, demand, and refusal (a).
And, where a minister of justice comes armed with process, founded on a
breach of the peace, doors may be broken (6). And in the case of any
insults to a Court of justice, on which process of contempt is issued, the
officer charged with the execution of the process may break open doors, if
necessary, in order to execute it (c). And the officer may act in the same
manner upon a cafias utlagatwm, or cafias fro f,ne. (i), or upon a habere
facias ^possessionem (e). The same force may be used where a forcible
entry or detainer is found by inquisition before justices of the peace, or
appears upon their view (/) ; and also where the proceeding is upon a
warrant of a justice of peace, for lev}dng a penalty on a conviction
grounded on any statute which gives the whole or any part of such
penalty to the King (gr).

Though a felony has actually been committed, breaking doors to arrest
a person suspected of the crime cannot be justified unless the officer comes
armed with a justice's warrant {h), or if the officer acts without warrant he
does so at his peril (^).

A plea justifying the entering a house without warrant, the.door being
open, on suspicion of felony, ought distinctly to shew the purpose for which
the house was entered, viz., either in search for the stolen property or to
arrest the plaintiff, as well as that there was reason to believe that tke
stolen property, or the plaintiff, was there (j).

If there is a quarrel or fight in a house, the doors of which are shut,
whereby there is likely to be manslaughter or bloodshed, and the constable
demands entrance, and is refused by those within, who continue the fight,
the constable may break open the doors to keep the peace, and prevent
the danger (k) ; and if there is disorderly drinking or noise in a house at an
unseasonable time at night, especially in inns, taverns, or alehouses, the
constable on demanding, and being refused entrance, may break open the
doors to see and suppress the disorder (1). Where a quarrel or fight is
going on in a house in the view or hearing of a constable, or where those
who have made an affray in his presence fly to a house, and are imme-
diately pursued by him, and he is not suffered to enter in order to suppress
the affray in the first case, or to apprehend the affrayers in either case,
he inay justify breaking open the doors (m).

(a) Fost. 320. 1 Hale, 459. And see 2 These writs and other writs wherein the

Hawk. u. 14, o. 7, where it is said that doors King has interest contain a non omiitas

may be broken open, where one known to clause. Harvey v. Harvey, 26 Ch.D. 649,

have committed a treason or felony, or to 655.

have given another a dangerous wound, is (c) 1 Hale, 458. 5 Co. Rep. 95 6.

puraued, either with or without a warrant (/ ) 2 Hawk. >^. 14, a. 6

by a constable or private person. {g) 2 Hawk. o. 14, s. 5. See s. 43 of the

(6) Fost. 320. 1 Hale, 459. 2 Hawk. Summary Jurisdiction Act, 1879 (42 & 43

c. 14, s. 3. Curtis's case, Fost. 135. Vict. c. 49).

(e) Burdett v. Abbott, 14 East, 1, 157, {h) Fost. 321. 2 Hawk. c. 14, s. 7.

where the process of contempt proceeded According to earlier authorities the con-

upon the order of the House of Commons. stable could break in without warrant on

Harvey v. Harvey, 26 Ch.D. 644, a writ of reasonable suspicion of felony. 1 Hale,

attachment for non-compliance with an 583. 2 Hale, 92. Y. B. 13 Edw. IV. 9 a.

order to deliver over deeds ; and see (i) 1 East, P. C. 322.

Willes, 459 : Semayne's case, 9 Co. Rep. 91 ; {j) Smith v. Shirley, 3 C. B. 142.

Cro. Eliz. 909 ; 78 E. R. 1131 ; and Briggs' {k) 2 Hale, 95.

case, 1 RoUe Rep. 336 ; 81 E. R. 526. {I) Id. ibid.

(d) 1 Hale, 459. 2 Hawk. c. 14, s. 4. (m) 2 Hawk. c. 14, a. 8.

&HAP. t.] Of Resistance to the Law. 74?

B. Civil Suits. — In civil suits, on the principle that a man's house is his
castle, an officer cannot in general justify the breaking open of an outer
door or window to execute the process, e.g. a fieri facias {n). If he does
so, he will be a trespasser ; and if the occupier of the house resists him,
and in the struggle kills him, the offence will be only manslaughter (o) ;
or if the occupier of the house does not know him to be an officer, and has
reasonable ground of suspicion that the house is broken with a felonious
intent, the killing will not be felony (p).

The maxim above stated is limited (q) in its application (1) to the breach
of outward doors or windows ; (2) to a breach of the house for the purpose
of arresting the occupier or any of his family ; and (3) to arrests in the
first instance.

1. Outward doors or windows are those intended for the security of the
house against persons from without endeavouring to break in (r). If the
officer finds the outward door open, or it is opened to him from within,
he may then break open the inward door, if he finds that necessary to
execute his process (s). Thus, an officer, having entered peaceably at
the outer door of the house, has been held justified in breaking open the
door of a lodger, who occupied the first and second floors, in order to
arrest him {t). And it has been held that a sheriff's officer in execution
of mesne process, who had first gained peaceable entrance at the outer door
of the house of A., might break open the window;s of the room of B., a
person residing in such house, who had refused to open the door of the
room after being informed by the officer that he had a warrant against
him (m). But if the party, against whom the process is issued, is not
within the house at the time, the officer can only justify breaking open
inner doors in order to search for him, after having first demanded
admittance (v). If the person or the goods of the defendant are in the
house which the officer has entered, he may break open any door within
the house without further demand (w). If, .however, the house is the
house of a stranger, and not of the defendant, the officer must be careful
to ascertain that the person or the goods (according to the nature of the
process) of the defendant are within before he breaks open any inner
door ; as, if they are not, he will not be justified (x). Where an outward
door was in part open (being divided into two parts, the lower hatch of
which was closed, and the upper part open), and the officer put his arm
over the hatch to open the part which was closed, upon which a struggle
ensued between him and a friend of the prisoner, and, the officer prevailing,
the prisoner shot at and killed him ; it was held to be murder (y).

in) R. V. Ciook, Oo. Car. 537. Post. (r) Post. 320.

319. But the aheriflf may, if necessary, in (s) 1 Hale, 458. 1 East, P. C. 323.

order to execute a writ of habere facias {t) Lee v. Gansel, 1 Cowp. 1.

possessionem, break open the outer door (u) Lloyd «. Sandilands, 2 Moore (C. P.),

if he be denied entrance by the tenant. 207 ; 8 Taunt. 250. See Hodgson v.

Semayne's case, 5 Co. Rep. 91. Harvey Towning, 5 Dowl. P. R. 410.

V. Harvey, 26 Ch.D. 655. {v) Ratcli£Ee v. Burton, 3 B. & P. 223.

(o) Cro. Car. 537. (w) Hutchinson v. Birch, 4 Taunt. 619,

(p) 1 Hale, 458. 1 East, P. C. 321, 322. Gibbs, J.

(q) Post. 319, 320, says that the rule has {x) Cook v. Birt, 5 Taunt. 765. John-
been carried as far as the true principles of son v. Leigh, 6 Taunt. 246.
political justice will warrant, and that it (y) R. v. Baker, 1 Leach, 112. 1 East,
will not admit of any extension. P. C. 323. There was proof of a previous

748

Of Homicide.

[teOOK tX.

The privilege only extends to the dwelling house, including it would
seem all buildings within the curtilage, and considered as parcel of the
dwelhng-house at common law (z).

2. The privilege in respect to outer doors or windows is confined to
cases where the breach of the house is made in order to arrest the occupier or
any of his family, who have their ordinary residence there : for if a stranger,
whose ordinary residence is elsewhere, upon pursuit, takes refuge in the
house of another, this is not the castle of such stranger, nor can he claim
in it the benefit of sanctuary (a). But where the doors of strangers are
broken open, upon the supposition of the person sought being there, it
must be at the peril of finding him there ; unless (it would seem) the parties
act under a magistrate's warrant (6).

If a sheriff's officer enters the house of the defendant for the purpose
of arresting him or taking his goods, he is justified if he has reasonable
grounds for believing that the party or his goods are there (c).

3. The privilege is also confined to arrests in the first instance. For if a
man who has been legally arrested (d) escapes from the officer, and takes
shelter (though in his own house) the officer may, upon fresh pursuit, break
open doors in order to retake him, having first given due notice of his
business, and demanded admission, and been refused (e) . If it be not, how-
ever, upon fresh pursuit, it seems that the officer should have a warrant.

resolution in the prisoner to resist the
officer, whom he afterwards killed in at-
tempting to attach his goods in his dwell-
ing-house, in order to compel an appearance
in the County Court. The point reserved
related to the legaHty of the attachment,
Vide ante, p. 738.

(z) See Penton v. Brown, 1 Sid. 186.
See the authorities as to what is compre-
hended under the term dwelling-house at
common law, under the titles of ' Burglary '
and 'Arson,' post. Vol. ii. pp. 1075, 1783.

(a) Fost. 320. 5 Co. Rep. 93. In
1 Smith's Leading Cases (11th ed.) p. 112,
in the notes to Semayne's case, after
citing the observations of Lord Lough-
borough in Sheere v. Brookes, 2 H. Bl. 120,
it is said that ' it seems to follow from this
that, as a house in which the defendant
habitually resides is on the same footing
with respect to executions as his own house,
the sherijff would not be justified in breaking
the outer door of such a house, even after
demand of admittance and refusal.'

(b) 2 Hale, 103. Fost. 321. 1 East,
P. C. 324. Mr. Smith, in the same note,
says : ' There may, perhaps, be another case
in which the sheriS might justify entering
the house of a stranger, upon bare suspicion
viz., if the stranger were to use fraud, and
to inveigle the sheriff into a belief that the
defendant was concealed in his house for
the purpose of favouring his escape, while
the officers should be detained in searching
or for any other reason, it might be held
that he could not take advantage of his own
deceit so as to treat the sheriff who entered
under the false supposition thus induced as

a trespasser ; or, perhaps, such conduct
might be held to amount to a licence to the
sheriff to enter.' It certainly is reasonable
in such a case that the party should not be
permitted to shew that in fact the defen-
dant was not concealed in his house, and
this would be in accordance with the
principles established by Pickard v. Sears,
6 A. & E. 469. Heane v. Rogers, 9 B. &
C. 577, 586. Kieran v. Sanders, 6 A. & E.
515, and Gregg v. Wells, 10 A. & E. 90, in
which last case it was held that a party who
negligently or culpably stands by and
allows another to contract on the faith and
imderstanding of a fact, which he can con-
tradict, cannot afterwards dispute that
fact in an action against the person
whom he has himself assisted in deceiving.'
C. S. G. ^

(c) Johnson v. Leigh, 6 Taunt. 246. In
Morrish v. Murray, 13 M. & W. 52, officers
were held not justified in entering and
searching the house of a stranger to arrest
a man on capias ad satisfaciendum if he
was not in the house at the time, though
he had resided there, and the officers had
reasonable cause to suspect that he was
there.

(d) Lajdng hold of the prisoner and pro-
nouncing the words of arrest, is an actual
arrest; Fost. 320. But bare words will
not make an arrest ; the officer must
actually touch the prisoner. Genner v.
Sparkes, 1 Salk. 79 ; 91 E. R. 74. Berry
■0. Adamson, 6 B. & C. 528.

(e) Post. 320. Genner v. Sparkes, ubi
supra. 1 Hale, 459. 2 Hawk. o. 14, s. 9.

CHAP. I,] Of Resistance to the Law. 749

and the officer will not be authorised to break open doors in order to
retake a prisoner where the first arrest has been illegal (/). Therefore,
where an officer had made an illegal arrest on civil process, and was
obliged to retire by the party's snapping a pistol at him several times,
and afterwards returned again with assistants, who attempted to force
the door, when the party within shot one of the assistants : the killing
was ruled to be only manslaughter {g).

Where an officer or his assistants, having entered a house in the
execution of their duty, are locked in, they may break open the doors to
regain their hberty {h). So where a sheriff being lawfully in a house makes
a lawful seizure of the goods of the owner of the house, and cannot take
the goods out of the house without opening the outer door, and neither
the owner or anyone else is there so that he can request them to open the
door, he may break the door open to take out the goods {i).

Where officers in order to execute process illegally break open doors
or windows, it is not clear whether to kill them is murder or manslaughter.
In Cook's case (/) a bailifi having a warrant to arrest a person upon a
capias ad satisfaciendum, came to his house, and gave him notice ; upon
which the person threatened to shoot him if he did not depart ; the
bailifi did not depart, but broke open the window to make the arrest, and
the person shot him, and killed him. This was held not to be murder,
because the officer had no right to break the house ; but manslaughter,
because the party knew the officer to be a bailiff.

In Curtis' case (k), upon some officers breaking open a shop door to
execute an escape warrant, the prisoner, who had previously sworn that
the first man that entered should be a dead man, killed one of them
immediately by a blow with an axe. A few of the judges to whom this
case was referred were of opinion that this would have been murder, even
if the warrant had not been legal, and the officers could not have justified
the breaking open the door, upon the grounds of the brutal cruelty of the
act, and of the dehberation manifested by the prisoner, who, looking out
of a window with the axe in his hand, had sworn, before any attempt to
enter the shop, that the first man that did enter should be a dead man.

The latter opinion seems correct ; for the status of the officers was
known and the breaking was at most a trespass and not in the nature of
burglary or felonious house-breaking, and the previous threats afforded
evidence of deliberation.

The fact that a warrant is illegal (l) may make an attempt to execute
it a provocation : but does not necessarily reduce the offence of killing
the officer in resisting execution from murder to manslaughter. If the
execution can be resisted without proceeding to extremity of violence (m),
use of great and unnecessary violence unsuited to the provocation given,
or proof of premeditated previous threats or express malice would seem

if) 1 East, P. C. 324. (h) [1758] Fost. 135.

Ig) Stevenson's case, 19 St. Tr. 846. (I) Where the warrant is for felony the

{%) 2 Hawk. 0. 14, s. 11. 1 East, P. 0. officer could apparently justify at common

324. law. See Hoye v. Bush, 1 M. & Gr. 775,

(i) Pugh V. Griffith, 7 A. & E. 827. Tindal, C.J. Beckwith v. Philby, 6 B.

(j) 1 Hale, 458. Cro. Car. 537. W. and C. 635.

Jones, 429. (m) See R. v. Thompson, 1 Mood. 80.

750 Of Homicide. [book ix.

to make killing in such a case murder (w). The true principle seems to
be that stated in East that the illegality of an attempt to arrest merely
puts the officer on the same footing as any other wrongdoer (o).

When due execution of the law by its known officer is resisted or the
officers are attacked to prevent their executing the law, as by arresting or
detaining in custody a person when they are legally entitled to take and
hold, the persons actually concerned in the resistance or attack are guilty
of murder. The person arrested or held is not liable if he jdelds himself
and takes no part in the resistance or attack : but is liable if he does an
act in aid or countenance of the attackers or in execution of a common
scheme of resistance to the law (p). Questions have arisen as to the law
where a stranger intervenes in a struggle to rescue an offender from officers
of the law or to resist arrest. It would seem that to kill the stranger
would be murder if he intervened with the object of preserving the peace,
aiding the officers of the law, and preventing mischief ; but that if he
intervened in aid of the rescuers and killed an officer of the law in the
struggle, it would be murder by the stranger {q).

Every person who wilfully engages in a breach of the peace by
assaulting another is bound at his peril first to satisfy himself of the
justice of the cause which he espouses ; and if he happens to take the
part of those resisting the law and to kill an officer of the law or a person
acting in his aid or a person lawfully acting in support of the law, it is
difficult to extenuate the offence by proof that the slayer had not know-
ledge or notice of the status of the party killed (r).

When the warrant or other authority under which a peace officer is
acting is not sufficient to justify him in arresting or detaining the person
whom he has taken or is holding, the officer is- not entitled to the peculiar
protection afforded by the law to officers acting in the execution of their
duty, and if he is killed the crime may be reduced to manslaughter when

(to) See R. v. Patience, 7 C. & P. 775, held not responsible unless it could be

Parke, B. ; R. v. Curvan, 1 Mood. 132, and proved that after his arrest he encouraged

the observations in Roscoe, Cr. Ev. (13th the other to kill the pursuers,

ed). 044 on Stockley's case; and Curtis' case, (q) Holt, C.J., and Rooksby, J., at Hert-

Fost. 356. ford, tem-p. Will. III. ad incipium MS.

(o) 1 East, P. C. 328. As to the Scots Traoey, 53 ; 1 East, P. C. 296 ; and see Fost.

law vide Alison, Cr. L. Sc. 25, 28 ; 1 Hume, 353.' In R. v. Willis, 1 Salk. 334, it was

250. In the Illinois case of Rafferty v. The ruled that if a man began a riot in which an

People (69 111. Ill ; 12 Cox, 617), it was held officer was killed he would be liable as a

that where the unlawful arrest of any per- principal murderer if present at the time of

son is attempted he may kill his assailant the slaying, though he did not commit the

deliberately. ^ fact. This depends on how far the killing

(p) See Sir Charles Stanley's case, Kel. was part of or a natural consequence of the

(J.) 86 ; 1 Sid. 159. 1 East, P. C. 296. concerted action which led to the riot ;

R. V. Whithorne, 3 C. & P. 394. R. v. vide ante, Bk. i. u. v. ; Bk. vi. c. i.

Rice [1902], 4 Ontario L. R. 233, post, (r) The olderauthorities and dicta on this

p. 754, note (I). 1 East, P. C. 318. subject are collected and discussed, 1 Hawk.

See Jackson's case, 1 Hale, 464, where c. 31, s. 59 ; 1 East, P. C. 316, 317. In Sir

of four robbers being pursued upon C. Stanley's case (Sid. 159; Kel. (J.), 86;

hue and cry one turned on his pur- East, P. C. 318) intervention against a

suers and, refusmg to yield, killed one bailiff with the object only to keep the

of them. It was considered that the peace was held manslaughter ; but in the

resista,nce was part of a common scheme report in Keble, 584, it is said that it was

of resistance, and that the other robbers adjudged, that if any casually assist against

were liable as principals in murder, though the law, and kill the bailiff, it is murder,

they were at some little distance. One of especially if he knew the cause of the

the gang arrested before the killing was bailiff's action.

CHAP. I.] Of Resistance to the Law. 751

the killing is sudden and without premeditation and is attended by
circumstances affording reasonable provocation (s). The proposition
above stated is now accepted as correctly declaring the law, and as re-
conciling the divergences of opinion among former judges upon the
question how far the person arrested, or third persons, especially mere
strangers interfering on behalf of a person illegally arrested or detained,
are entitled to rely on the illegality of the arrest to extenuate their
guilt in killing the officer.

In Ferrers' case {t), Sir Henry Ferrers being arrested for debt, upon an
illegal warrant, his servant, in seeking to rescue him, as was pretended,
killed the officer ; but, upon the evidence, it appeared clearly that Sir
Henry Ferrers, upon the arrest, obeyed, and was put into a house before
the fighting between the officer and his servant : wherefore he was found
not guilty of murder or manslaughter.

In Hugget's case (m), B. and two other constables impressed a man
without a warrant for so doing ; to which the man quietly submitted,
and went along with them. The prisoner, with three others, seeing them,
instantly pursued them, and required to see their warrant ; on which B.
shewed them a paper, which the prisoner and his associates said was
no warrant, and immediately drew their swords to rescue the impressed
man, and thrust at B. ; whereupon B. and his two companions drew
their swords, and a fight ensued, in which Hugget killed B. But this case
is stated very differently by Lord Hale, as having been under the follow-
ing circumstances : — A press-master seized B. for a soldier ; and, with
the assistance of C, laid hold of him. D. finding fault with the rude-
ness of C, there grew a quarrel between them, and D. killed C. ; and
by the advice of eight judges against four, it was ruled that this was
but manslaughter.

In R. V. Tooley {v) B., who was a parish constable, came into another
parish, where he was no constable, and consequently had no authority {w) ;
and there arrested a woman, under suspicion of being a disorderly person,
but who had not misbehaved herself, and against whom B. had no
warrant. The prisoners came up ; and though they were all strangers
to the woman drew their swords, and assaulted B., for the purpose of
rescuing the woman from his custody ; upon which he shewed them his
constable's staff, declared that he was about the Queen's business, and
intended them no harm. The prisoners then put up their swords ; and
B. carried the woman to the round-house in Covent Garden. A short time
afterwards, the woman being still in the round-house, the prisoners drew

(«) Opinion of Blackburn and Mellor, who held it manslaughter put the point as

J. J., in R. V. Allen, 17 L. T. (N. S.) 222; an endeavour to rescue, and that undue

Steph. Dig. Cr. L. (6th ed.) 421. arrest or restraint of the Uberty of any

if) Cro. Car. 371. The ratio decidendi person is a provocation to all men of Eng-

was that the warrant was bad for misde- laud. In R. v. Mawgridge, Kel. (J.) 136,

scribing a baronet as a knight. In the Hugget's case is treated as having settled

report in W. Jones the ruling is said to have the law.

been that the offence was not murder either (v) 2 Ld. Raym. 1296 : 92 E. R. 349.

in master or servant, because the warrant (w) One judge only thought that Bray

was bad. acted with authority, as he showed his

(u) The fullest report is in Kel. (J.) 59, staff, and that, with respect to the pri-
and see 1 Hale, 465. The minority con- soners, he was to be considered as con-
sidered the offence murder. The judges stable de facto.

752 Of Homicide., [book ix.

their swords agaiji, and assaulted B., on account of her imprisonment,
and to get her discharged. B. called some persons to his assistance, to
keep the woman in custody, and to defend himself from the violence of
the prisoners ; upon which a person named D. came to his assistance ;
and before any stroke received, one of the prisoners gave D, while assisting
the constable, a mortal wound. This case was elaborately argued,
and the judges were divided in opinion ; seven of them holding that the
offence was manslaughter only, and five that it was murder. The seven
judges who held that it was manslaughter thought that it was a sudden
action, without any precedent malice or apparent design of doing hurt,
but only to prevent the imprisonment of the woman and to rescue her
who was unlawfully restrained of her liberty ; and that it could not be
murder, if the woman was unlawfully imprisoned (a;) ; and they also
thought that the prisoners, in this case, had sufficient provocation on
the ground that if one be imprisoned upon an unlawful authority, it is a
sufficient provocation to all people out of compassion, and much more
where it is done under a colour of justice ; and that, where the liberty
of the subject is invaded, it is a provocation to aU the subjects of
England. But the five judges who differed thought that, the woman
being a stranger to the prisoners, it could not be a provocation to them ;
otherwise if she had been a friend or servant ; and that it would be
dangerous to allow such a power of interference to the mob. The
majority of the judges reUed on Hugget's case and Ferrers' case {y).

In R. V. Osmer (z) a man was arrested on a good warrant by a person
described as sergeant at mace, who had no authority to execute it. The
defendant was convicted of assaulting the sergeant, but the conviction
was held bad, EUenborough, C.J., saying : ' If a man without authority
attempts to arrest another illegally it is a breach of the peace, and any
other person may lawfully interfere to prevent it, doing no more than is
necessary for the purpose.'

In R. V. Phelps {a), on an indictment for the murder of a person who
was assisting a poUce officer to take P. to the station house it appeared
that P. was arrested on suspicion of having stolen potatoes from a garden.
As the poHce had not found P. committing the offence, and it was not a
felony, Coltman, J., ruled that the arrest was illegal and the killing man-
slaughter only.

The conclusions of the majority of the judges in Tooley's case were
severely criticised by Foster, J., who considered that they were not
warranted by Hugget's case or Ferrers' case, and carried the law in favour
of private persons officiously interfering in cases of illegal arrest further
than was warranted by sound reason or true policy (6). After observing
that in Hugget's case (c) swords were drawn, a mutual combat ensued,
the blood was heated before the mortal wound was given, and a rescue
seemed to be practicable at the time the affray began ; whereas, though
in Tooley's case, the prisoners had, at the meeting, drawn their swords

'f L^°f *;^^^ 7°"^^'^ °^^®' ^ ^°- ^^P' ^0' ("■) C- & M. 180, ante, p. 726. This case

and Maokalley s case, 9 Co. Rep. 65, were turned chiefly on 7 & 8 Geo. IV. c. 29, s. 63,

cited. re-enacted as 24 & 25 Vict. o. 96, s. 103

(y) Ante, p. 751. (^ Post. 312 et «cj.

(z) 5 East, 304. (c) Ante, p. 751.

CHAP, i.i Of Resistance to the Law. 753

against the constable unarmed, they had put them up again, appearing
to be pacified, and cool reflection seeming to have taken place ; and it
was at the second meeting that the deceased received his death wound,
before a blow was given or ofiered by him or any of his party ; and also
in that case there was no possibility of rescue, the woman having been
secured in the round-house ; he says, that the second assault on the
constable seems rather to have been grounded upon resentment, or a
principle of revenge, for what had before passed, than upon any hope or
endeavour to assist the woman. He then proceeds : ' Now, what was the
case of Tooley and his accomplices, stript of a pomp of words, and the
colourings of artificial reasoning ? They saw a woman, for aught appears,
a perfect stranger to them, led to the round-house under a charge of a
criminal nature. This, upon evidence at the Old Bailey, a month or two
afterwards, comes out to be an illegal arrest and imprisonment, a violation
of Magna Charta ; and these ruffians are presumed to have been seized,
all on a sudden, with a strong fit of zeal for Magna Charta {d) and the
laws ; and in this frenzy to have drawn upon the constable, and stabbed
his assistant. It is extremely difficult to conceive that the violation of
Magna Charta, a fact of which they were totally ignorant at the time,
could be the provocation which led them into this outrage. But, admitting
for argument sake that it was, we all know that words of reproach, how
grating and offensive soever, are in the eye of the law no provocation in
the case of voluntary homicide ; and yet every man who hath considered
the human frame, or but attended to the workings of his own heart,
knows that affronts of that kind pierce deeper, and stimulate the veins
more effectually, than a slight injury done to a third person, though under
colour of justice, possibly can. The indignation that kindles in the
breast in one case is instinct, it is human infirmity ; in the other it may
possibly, be called a concern for the common rights of the subject ; but
this concern, when well founded, is rather founded in reason and cool
reflection, than in human infirmity ; and it is to human infirmity alone
that the law indulges in the case of a sudden provocation.' He then
proceeds further : ' But if a passion for the common rights of the subject,
in the case of individuals, must, against all experience, be presumed to
inflame beyond a personal affront, let us suppose the case of an upright
and deserving man, universally beloved and esteemed, standing at the
place of execution, under a sentence of death manifestly unjust. This is a
case that may well rouse the indignation, and excite the compassion, of
the wisest and best men ; but wise and good men know that it is the duty
of private subjects to leave the innocent man to his lot, how hard soever
it may be, without attempting a rescue ; for otherwise aU government
would be unhinged. And yet, what proportion doth the case of a false
imprisonment, for a short time, and for which the injured party may
have an adequate remedy, bear to that I have now put ? ' (e)

In R. V. Adey (/), the prisoner, who cohabited with a person named F.,

(d) Holt, C.J., in deUverIng the judg- (e) Fost. 315, 316, 317.

ment in Tooley's case, had said: ' Sure a (f) 1 Leaoh, 206. At p. 212 it is said

man ought to be concerned for Magna that the prisoner lay eighteen months in

Charta and the laws : and if any one gaol, and was then discharged ; but the

against the law imprison a man, he is an following note is added : ' It is said, that

offender against Magna Charta.' the judges held it to be manslaughter only,

VOL. I. 3 0

754

Of KoniiciAe,

[BOOfe iX.

killed an aSsktant of a constable, who came to apprehend F., as an idle
and disoi'derly person, under 19 Geo. II. c. 10. (<j), though he was not
an object of the Act, and did not himself make any resistance to the arrest ;
but the prisoner, immediately upon the constable and his assistant
fecjuiring F. to go along with them, without making uSe Of any argument
to induce them to desist, or saying one word to prevent the intended
arrest, stabbed the assistant. Hothftm, B., with whom Gould, J., and
Ashhurst, J;, concurred, held the'ofEence to be murder. A special verdict,
however, was found Qi) : and the case was argued in the Exchequer
Chamber, before ten of the ji^dges ; but no opinion was ever publicly
deliveredi

The opinion of Foster seems to have been accepted by Alderson, B.,
who said in E. v. Warner (t) that Tooley's case was overruled, and by
I'oUock, C.B., in R. v. Davis {j), and is approved by Sir James Stephen {k),
and appears to be established as the accepted rule by E. v-. Allen [1),
In that case K. and D. had been arrested on suspicion of felony [m), and
Were from time to time remanded on a warrant charging them generally
with felony but not specifying any particular offence. While they were
being driven In a poUce van to prison a rescue was attempted — in the
Course of which a constable was kiUed. On an indictment of A. and

but no opinion wa3 ever publicly given ;
and qu., whether the prisoner did not escape
pending the opinion of the judges, when
the gaol was burnt down in 1780, and was
never retaken.' And See also 1 East, P. C.
329, note (d), where it is said : ' Upon in-
quiry, however, it appears that, pending the
consideration of the case by the judges, she
escaped during the riots in 1780, and was
never retaken.' In R, v. Porter (reported
as to another point, 9 C. & P. 778), upon an
indictment for murder, it appeared .that
the deceased, who was a watchman, and
another were taking a person towards a
station-house on a charge of robbing a
garden, and were proceeding quietly along
a road, the prisoner making no resistance,
when they were attacked and the deceased
beaten to death. In opening the case it
was asserted, that even if the prisoner were
not lawfully in custody, the ofEenCe was
ttnn:der ; for if a person were illegally in
custody, and was making no resistance, no
person had any right to attack the persons
who had him in custody, and that if they
did, and death ensued in consequence of
the violence used to release the prisoner, it
was murder ; and that, although there
might be old cases to the contrary, they
were no longer considered as binding
authorities. The point, however, did not
ultimately become material, as it was held
that the party was in lawful custody ; but
the above position was neither controverted
by the very learned judge who tried the
case, nor by the prisoner's counsel ; and it
would seem that it could not be successfully
disputed, for it is difficult to discover upon
what principle any individual can be
justified in interfering to prevent what

apparently is the due execution of the law,
and that the question, whether he is guilty
of mutdet or manslaughter, if death ensue,
is to depend upon whether the custody is
legal or illegal, of which, probably, at the
time, he was perfectly ignorant, and which,
consequently, could in no respect infiuenoe
his conduct. C. S. G. See ante, p. 729.

(g) A local Act.

(h) The Court advised the jury to find a
special verdict, on the ground of the
diflference of opinion which had been enter-
tained in Tooley's case, and Hugget's case,
ante, p. 751.

(i) 1 Mood. 385.

(j) L. & C. 64, 71.

(h) 3 Steph. Hist. Cr. L, 71 ; Steph.
Dig. Cr. L. (6th ed.) and see Mayne, Ind. Cr.
L. (ed. 1896), p. 424.

(I) See 17 L.T. (N. S.) 222, and the facts of
this case (known in Ireland as that cf the
Manchester Martyrs), analysed outin Steph.
Dig. Cr. L. (6th ed.), pp. 414 et seq. It is
reported as R. v. Martin, Times, Nov. 7,
1867. See R. v. Rice [1902], 5 Canada
Cr. Cas. 509 ; 4 Ontario, L. R. 233. There
R. and two others, being under trial for
burglary, were during the trial being recon-
veyed in a cab to gaol in the lawful custody
of two constables. A parcel containing
revolvers was thrown by an unknown per-
son into the cab, a struggle with the con-
stables in charge ensued in which one was
killed by a shot fired by one of the three
prisoners, it was not ascertainable by which.
Held that the act being done by one of the
three acting in concert, R. was guilty of
murder.

(m) Steph. Dig. Cr. L. (6th ed.) 421.

CitAP. i.] Oriminai, Untawfut, or Wanton Purpose. 755

others for the murder of the constable it was contended that K. and D.
were not in legal custody and that consequently the killing of the
constable in the attempt to rescue them was manslaughter only. Black-
burn and MeUor, JJ., directed the jury to convict of murder, and on a
conviction, after consulting the other judges, refused to reserve a case.
In giving the reasons for their refusal they laid down the rule stated ante
pp. 721, 750, and distinguished the cases of Ferrers, Hugget and Tooley,
relied on for the defence as applying only in the case of a sudden or
unpremeditated affray where the fact of unwarranted arrest might be a
sufficient provocation and the parties might act without any previous
malice or design of doing hurt (n). And they added that the convicts
had formed a deliberate prearranged conspiracy to attack the police with
fire-arms and shoot them if necessary for the purpose of rescuing K. and
D., and well knew that the police were acting in obedience to the com-
mands of a justice who had fuU power to remand K. and D. to gaol if
he made a proper warrant for the purpose. ' We think it would be
monstrous to suppose that under such circumstances, even if the justice
did make an informal warrant, it would justify the slaughter of an officer
in charge of the prisoners or reduce that slaughter to the crime of
manslaughter.'

Sect. IX. — Op Killing in the Prosecution of some Criminal,
Unlawful, or Wanton Purpose.

As a general principle j subject to the qualifications presently to be
stated, if an action, unlawful in itself, is done dehberately, and with intent
to cause mischief or great bodily harm to particular individuals, or
indiscriminate mischief, and some person is killed in consequence of the
act, even against or beside the original intention of the slayer, he is in law
guilty of murder (o).

Under this head fall cases in which particular malice directed
against one person falls by mistake or accident upon another. Though
the death caused under such circumstances may in a loose way be called
accidental, the law does not so regard it. Thus if B. is killed by means
which were in fact intended to kill or injure A., whether by poison, blow,
Or any other means, the killing of B. is murder if the kilhng of A. would
have been so (p). Thus, if C, having malice against A., strikes at and
misses him, but kills B., this is murder in C. (q) ; and, if A. and B. engage
in a deliberate duel, and a stranger coming between them to part them is
killed by one of them, it is murder in the party killing (r). And- where A,

(») See Tooley's oaae, 2 Ld. Raym. 1300, out of Dallison's Report, p. 217. But

Holt, C.J., ante, p. 751. Hale thinks that it is not murder in both,

(o) Fost. 261. unless both struck him who came to part

(p) Id. ibid. 1 Hale, 441. R. v. Wil- them,andsaysthatbythebookof22As3.71.

liams, 1 Hale, 469. See R. v. Mawgridge, Coron. 180 (which seems to be the case more

Kel. (J.), 131 ; 17 St. Tr. 57. at large) he only that gave the stroke had

(?) 1 East, P. C. 230. judgment, and was executed. 1 Hale, 441,

(r) 1 Hale, 441. Dalt. c. 145, p. 472. to which this note is subjoined: 'The other

It appears to have been held where the does not appear to have been before the

combat was by malice prepense, that the Court ; but, upon putting the case, the

killing of the person who came to part Court said he that struck ia guilty of felony,

them was murder in both combatants, but said nothing as to him who did not

Y. B., 22 Bdw. III. Coron. 262. Lambard. strike.'

3c2

756 Of Bomicide. tsooK ix.

had malice against D., the master of B., and assaulted him, and upon B.
the servant coming to the aid of his master, A. kills B., it was held murder
in A. as much as if he had killed the master (s). So, where A. gave a
poisoned apple to his wife intending to poison her, and the wife, ignorant
of the matter, gave it to a child who took it and died ; this was held
murder in A., though he, being present at the time, endeavoured to
dissuade his wife from giving the apple to the child («). Where A. mixed
poison in an electuary sent by an apothecary to her husband, with intent
to poison him, which did not kill him, but afterwards killed the apothecary
who to vindicate his reputation tasted it himself, having first stirred it
about, some doubt was entertained, because the apothecacy, of his own
hand, without incitement from anyone, not only partook of the electuary,
but mingled it together, so as to incorporate the poison, and make its
operation more forcible than the mixture as made by the wife of A. But
ultimately the judges resolved that A. was guilty of murder, for the
putting the poison into the electuary was the cause of the death : and
if a person prepares poison with intent to kill any human being, such
person is guilty of the murder of any one who is killed thereby (m). So
if A. puts poison into wine, with intent to kill B., and C. drinks the wine
and dies, A. is guilty of the murder of C. ; and it makes no difference that
the wine, unless stirred up, would not have killed C, and that C, thinking
there was sugar in it, stirred it up {v).

So, where a person gave medicine to a woman to procure abortion {w),
and where a person put skewers into the womb of a woman for the
same purpose {x), by which in both cases the women were killed, these
acts were held murder ; for though the death of the woman was not
intended, the acts were deliberate and malicious, and necessarily
attended with great danger to the person on whom they were practised.

Where the prisoner was indicted for the wilful murder of a woman,
and it appeared that the woman had died as a result of the prisoner
having injected mercury or used other means upon her with the intention
of procuring abortion, Bigham, J., told the jury : ' If you are of opinion
that the girl died as a result of the prisoner's unlawful operation, he is
guilty of murder ... I do not mean to say that there are not some cases
where this rule of law is not applicable. There may be cases where death
is so remote a contingency that no reasonable man could have taken it
into his consideration. ... If you can think that though the prisoner
may have administered the injection, he nevertheless could not have
contemplated that it could have resulted in death, then he is not guilty
of the graver charge, but is guilty of the lesser crime of manslaughter ' {y).

Even where no mischief is intended to any particular individual, if
there is a general malice or depraved inclination to mischief, fall where it
may ; the act itself being unlawful, attended with probable serious
danger, and done with a mischievous intent to hurt people, the killing is

(s) 1 Hale, 438. 2 Mood. 120.

(() R. V. Saunders, flowd. 473. 1 Hawk, (w) 1 Hale, 429.

c. 31, s. 45. 1 Hale, 436. (x) E. v. Tinckler, 1 East, P. C. 230, 354 ;

(u) R. V. Gore, 9 Co. Rep. 81. 77 E. R. 1 Den. v.

853. 1 Hawk. 0. 31, s. 45. 1 Hale, 436. (i/) R. v. Whitmarsh, 62 J. P. 7i],

(v) 9 Co. Rep. 81. See R. v. Michael, Bigham, J.

CHAP. I.]- Criminal, Unlawful, or Wanton Purpose. 757

in law murder (z). Thus, if a man deliberately, and with intent to do
mischief, rides upon a horse used to kick, or coolly discharges a gun, among
a multitude of people, and death results, it will be murder (a). So, if a
man resolves to kill the next man he meets, and does kill him, it is murder,
although he knew him not ; for this is universal malice (h). Upon the
same principle, if a man, knowing that people are passing along the street,
throws a stone likely to do injury, or shoots over a house or wall with
intent to do hurt to people, and one is thereby slain, it is murder on
account of the previous malice, though not directed against any particular
individual ; for it is no excuse that the party was bent upon mischief
generally (c).

It has been said that whenever an unlawful act (an act malum in se),
is done in prosecution of a felonious intention, and death ensues, it will be
murder : as if A. shoots at the poultry of B. intending to steal the poultry,
and by accident kiUs a man, this will be murder by reason of the felonious
intention of steahng {d). But Holt, C. J., said that the dictum of Coke
(3 Inst. 56), was too large and that ' there must be a design of mischief to the
person, as to commit a great riot ' (e). And upon an indictment for murder
against a man who had set fire to his house with intent to defraud his
insurers, and had thereby caused the death of an imbecile son of his,
Stephen, J., said : ' I think that, instead of saying that an act done
with intent to commit a felony and which causes death amounts to murder,
it would be reasonable to say that any act known to be dangerous to life
and likely in itself to cause death done for the purpose of committing
a felony which caused death, should be murder ' (/). And it has been
held, that if such offenders as were mentioned in 21 Bdw. I., st. 2 (h) [Be
malefactoribus in parcis), killed the keeper, &c., it was murder in all,
although the keeper ordered them to stand, assaulted them first, and
they fled, and did not turn till one of the keeper's men had fired and
hurt one of their companions (^).

(z) 1 Hale, 475. 1 East, P. C. 231. tame fowl, and says, if the arrow by mis-

(a) 1 Hale, 476. 4 Bl. Com. 200. 1 adventure kills a man, it is murder ; and

Hawk. 0. 29, s. 12. 1 East, P. C. 231. cites for the latter position 3 Edw. III.

Hawkins, speaking of the instance of the Coron. 354, 2 Hen. IV. 18, and 11 Hen. VII.

person riding a horse used to kick amongst 23. Hale (1, 38) cites 11 Hen. VII. 23,

a crowd, says, it would be murder, though Br. Coron. 229, Proclamation, 12. 22

the rider intended no more than to divert Ass. pi. 71, and see 1 Hale, 568. R. v.

himself by putting the people into a fright. Woodburn, 14 St. Tr. 53, 80. In R. v.

1 Hawk. c. 31, a. 68, and see ante, p. 679. Plummer, Kel. (J.) 109, 117, the question is

(6) 4 Bl. Com. 200. discussed in the judgment of C.J., and

P. 0. 231. See remarks by Blackburn, J., two men have a design to steal a hen, and

in the course of the argument in R. v. one shoots at the hen for the purpose, and

Pembliton, L. R. 2 C. C. R. 119, and R. a man be killed, it is murder in both, be-

V. Latimer, 17 Q.B.D. 359. See also R. v. cause the design was felonious ; and it is

Martin, 8 Q.B.D. 54, and R. v. Faulkner, said that with that explanation the books

13 Cox, 550. cited do warrant that opinion. Foster,

{d) Fost. 258, 259.! Coke (3 Inst. 56) 258-9, cites 3 Co. Inst. 56, and Kel. (J.) 117.

says : ' If the act be unlawful it is murder ; (e) R. v. Keates, Comb. 406, 409.

as if A., meaning to steal a deer in the park (/) R. v. Serne, 16 Cox, 311, 313.

of B., shoots at the deer, and by the glance {h) Repealed in 1827 (7 & 8 Geo. IV. u.

of the arrow kills a boy that is hidden in 27). 1 Hale, 491.

a bush, this is murder ; for that the act is (i) 1 East, P. C. 256, citing 1 MS. Sum.

unlawful,' and he cites Bract. Lib. 3. 120b. 145, 175. Sum. 37, 46. Palm. 546. 2

And then he draws the distinction between Roll. Rep. 120. The reason is, the Act

shooting wild fowl and shooting at any provides that, if after hue and cry made to

758 Of Homicide. [book ix.

It has been shewn, that where death ensues from an act done in the
prosecution of a felonious intention, it will be murder (j) ; but a distinction
is taken in the case of an act done with the intent only of committing a
bare trespass ; as if death ensues from such act, the offence will be only-
manslaughter (k). Thus, if A. shoots at the poultry of B., intending to
steal them, and by accident kill a man, it will be murder; yet, if he shoots
at them wantonly, and without any such felonious intention, and acciden-
tally kiUs a man, the offence will be only manslaughter (l). And any
one, who voluntarily, knowingly, and unlawfully, intends hurt to the
person of another, though he does not intend death, yet, if death ensues
is guilty of murder or manslaughter, according to the circumstances
or the nature of the instrument used, and the manner of using it, as
calculated to produce great bodily harm or not (m). And if a man is
doing an unlawful act, though not intending bodily harm to any one
(as if he is throwing a stone at another's horse), and hits a person and
kills him, it is manslaughter (w).

Incendiarism. — Where a man set fire to a house whereby a person was
burnt to death it was held murder (o). On an indictment for murder it
appeared that the prisoner had set fire to a stack of straw, in an enclosure
in which was an outhouse or barn, but not adjoining to any house. While
the fire was burning, the deceased was seen in the flames, and his body
was afterwards found in the enclosure. There was no evidence who he
was, or how or when he came there, nor whether he had been in the out-
house or merely lying on or beside the stack : nor was there evidence
that the prisoner had any idea that any one was, or was likely to be, there,
and when he saw the deceased, he wanted to save him. It did not exactly
appear how long the fixe had been kindled before it was discovered, but
very soon after it was discovered the deceased was seen in the flames.
Bramwell, B., told the jury that ' the law laid down was that where a
prisoner, in the course of committing a felony, caused the death of a
human being, that was murder, even though he did not intend it. And
though that may appear unreasonable, yet, as it is laid down as the law,
it is our duty to act upon'it. The law, however, is that a man is not
answerable except for the natural and proidble result of his own act ;
and therefore, if you should not be satisfied that the deceased was in the
farm or enclosure at the time the prisoner set fire to the stack, but came
in afterwards, then, as his own act intervened between the death and the
act of the prisoner, his death could not be the natural result of the
prisoner's act. And in that view he ought to be acquitted on the present
charge ' (p).

Grievous Bodily Harm.— Where the intent is to do some great bodily

stand, they will not yield, but flee or defend (m) i; East,' P. C. 256, 257. 1 Hale, 39.

themselves, and the keepers kill them in (m) 1 Hale, 39.

taking them, they shall not be troubled in (o) R. v. Smithies, 5 C. & P 332 See

any way for it. Therefore all that the R. v. Sern6, 16 Cox, 311, ante, p. 757.

keepers did in this case was lawful, and (p) R. v. Horsey, 3 F. & F. 287. The

consequently the killing was the killing of a question in such a case would be whether

party in the due execution of his duty. the prisoner in firing the stack had com-

0) Ante, p. 757. mitted a felony within 24 & 26 Vict. o. 97,

(k) Fost. 258. Coke seems to think s. 7. See R. v. Child. L. R. 1 C. C. R. 307

otherwise, 3 Inst. 56. 310, Blackburn, J.
(0 Fost. 258, 259. 1 Hale. 475.

CHAP. I.] Criminal, Unlawful, or Wanton Purpose. 759

harm to another, and death ensues, it will be murder ; as if A. intends
only to beat B. in anger, or from preconceived malice, and happens to
kill him, it will be no excuse that he did not intend all the mischief that
followed ; for what he did was malum in se, and he must be answerable
for all its consequences. He beat B, with an intention of doing him
some bodily harm, and is therefore answerable for all the harm he did (q).
So if a large stone is thrown at one with a deliberate intention to hurt,
though not to kill him, and" by accident it kills him, or any other, this is
murder (r). If a wrongful act (an act which the party who commits it
can neither justify nor excuse) is done under circumstances which shew
an intent to kill, or to do any serious injury, or any general malice, the
offence is murder (s). But the nature of the instrument, and the manner
of using it, as calculated to produce great bodily harm or not, will vary
the offence in all such cases (t).

Practical Jokes. — Upon an indictment for murder it appeared that
the deceased, being in liquor, had gone at night into a glass-house, and
laid himself down upon a chest ; and that while he was there asleep the
prisoners covered and surrounded him with straw, and threw a shovel
of hot cinders upon his belly ; the consequence of which was that the
straw ignited, and he was burnt to death. There was no evidence of
express malice, but the conduct of the prisoners indicated an entire
recklessness of consequences, hardly consistent with anything short of
design. Patteson, J., adverted to the fact of there being no evidence
of express malice, but told the jury that if they believed the prisoners
really intended to do any serious injury to the deceased, although not to
kill him, it was murder ; but if they beUeved their intention to have
been only to frighten him in sport it was manslaughter (u).

Where Several join to do an Unlawful Act. — Where several persons
come to a resolution to resist all opposers in the commission of a breach
of the peace, and to execute it in a manner naturally tending to create
riot or tumult, e.g. by going to beat a man, or rob a park, or standing
in opposition to the sheriff's posse, they must, at their peril, abide the
event of their actions. And therefore if in doing any of these acts they
happen to kill a man, they are all guilty of murder (v). But in order to
make the killing by any, murder in all, of those who are confederated
together for an unlawful purpose, merely on account of the unlawful act
done or in contemplation, it must happen during the actual strife or
unlawful enterprise, or at least within such a reasonable time afterwards
as may leave it probable that no fresh provocation intervened (w).

The fatal act must appear to have been committed strictly in prose-
cution of the purpose for which the party was assembled ; and therefore,
if several persons be engaged in an unlawful act, and one of them takes
the opportunity to kill one of his companions against whom he bears
deliberate malice, the rest are not concerned in the guilt of that act,

iq) Fost. 259. v. Fenton, 1 Lew. 179, and R. v. Franklin,

(r) 1 Hale, 440, 441. 15 Cox, 163, post, p. 785.

(s) R. V. Fenton, 1 Lew. 179, Tindal, C.J. (v) 1 Hawk. c. 31, s. 51. Staundf. 17.

post, p. 785. As to bodily harm vide post, 1 Halo, 439 et seq. 4 Bl. Com. 200. 1

p 852. East, P. C. 257. And see ante, p. 112.

(t) Kel. (J.) 133. 1 East, P. C. 257 . (w) 1 East, P. C. 259,

\u) R. V. Errington, 2 Lew. 21?. See R.

760 Of Homicide. [book ix.

because it had no connection with the crime in contemplation {x). Two
men were beating another man in the street, and a stranger made some
remark upon the cruelty of the act, upon which one of the two men gave
him a mortal stab with a knife. On an indictment of both men as prin-
cipals in the murder ; the judge held that although both were doing an
unlawful act in beating the man, yet as the death of the stranger did not
ensue upon that act, and as it appeared that only one of them intended
any injury to the person killed, the other could not be guilty either as
principal or accessory {y).

Where a party of smugglers were met and opposed by an officer of
the Crown, and during the scuffle which ensued a gun was discharged by
a smuggler, which killed one of his own gang, the question was, whether
the whole gang were guilty of this murder. The Court agreed that if the
King's officer, or any of his assistants, had been killed by the shot, it
would have been murder in aU the gang ; and also, that if it had appeared
that the shot was levelled at the officer, or any of his assistants, it would
also have amounted to murder in the whole of the gang, though an accom-
pUce of their own were the person kiUed (2). The point upon which the
case turned was, that it did not appear from any of the facts found that
the gun was discharged in prosecution of the purpose for which the party
was assembled (a). In another case the prisoners had been hired by a
tenant to assist him in carrying away his household furniture in order to
avoid a distress. They accordingly assembled for this purpose armed
with bludgeons and other offensive weapons ; and a violent affray took
place between them and the landlord of the house, who, accompanied on
his part by another set of men, came to prevent the removal of the goods.
The constable was called in and produced his authority, but could not
induce them to disperse : and, while they were fighting in the street, one
of the company, but which of them was not known, killed a boy who was
standing at his father's door looking on, but totally unconcerned in the
affray. The question was raised whether this was murder in all the
company; but the majority of the judges held,' that as the boy was
found to be unconcerned in the affray, his having been kiUed by one of
the company could not possibly affect the rest ; for the homicide did not
happen in prosecution of the illegal act (6). This opinion seems to have
been based on the view that there was no evidence to shew that the
stroke by which the boy was killed was either levelled at any of the
opposing party, or was levelled at him upon the supposition that he was
one of the opponents, and therefore that it was not given in prosecution
of the purpose for which the party was assembled (c).

[x) 1 Hawk. u. 31 s. 52. Post. 351. act by continuing the affray after the

And see the charge of Foster, J., in R. v. constable had commanded the peace.

Jackson, 9 Harg St. Tr 715. They cited Staundf. 17, 40; Fitz. Corone,

[y) Anon. 8 Mod. 164. 1 Hawk. 0. 31, 350 ; Crompt. 244. See R. v. Plummer!

°- , • „ Tr,,T^,„„ «6i swpro, and 12 Mod. 629. Thompson's

' ^ '": ^oT'^^l' ^^\^^-^' }?^- . '"'^^' ^^'- (J-) 66 : and Anon. 8. Mod. 165.

(o Fost. 352, and see Mansell and Her- See also Keilw. 161 ; and Borthwick's case,

bert s case, 2 Dy. 128 b : 73 E. R. 279. 1 Dougl 207

lb) R. V. Hodgson 1 Leach 6, cited as R. (c) 1 East," P. C. 258, 259 ; and see the

V. Hnbson 1 East, P. C. 258. Holt, C. J., remarks of Hale, upon the case of Mansell

and Follexfen, C.J., considered the offence and Herbert 2 (Dy. 128 b.) in 1 Hale 440

murder, as all were engaged in an unlawful 441. ' '

CHAP. I.] Criminal, Unlawful, or Wanton Purpose. 761

The prisoners, eight in number, each having a gun, upon being found
poaching by some keepers, who went towards them for the purpose of
apprehending them, formed into two lines, and pointed their guns at the
keepers, saying that they would shoot them. A shot was then fired
which wounded a keeper, but no other shot was fired. It was objected
that it was clear that there was no common intent to shoot this man,
because only one gun was fired instead of the whole number. Vaughan,
B., said : ' That is rather a question for the jury, but still on this evidence it
is quite clear what the common purpose was. They all draw up in lines,
and point their guns at the gamekeepers, and they are all giving their
countenance and assistance to the one who actually fires the gun. If it
could be shewn that either of them separated himself from the rest, and
shewed distinctly that he would have no hand in what they were doing,
the objection would have much weight in it ' (d). Two private watchmen
seeing the prisoner and another man with two carts laden with apples,
which they suspected had been stolen, went up to them, and one walked
beside the prisoner, and one beside the other man, at some distance from
each other, and while they were so going along, the prisoner's companion
stepped back, and with a bludgeon wounded the watchman he had been
walking with. Garrow, B., said : ' To make the prisoner a principal the
jury must be satisfied that when he and his companion went out with
a common illegal purpose of stealing apples, they also entertained the
common guilty purpose of resisting to death, or with extreme violence,
any persons who might endeavour to apprehend them ; but if they had
only the common purpose of stealing apples, and the violence of the
prisoner's companion was merely the result of the situation in which he
found himself, and proceeded from the impulse of the moment,
without any previous concert, the prisoner will be entitled to an
acquittal (e).

Where the whole of a party of poachers set upon and beat a keeper
till he was senseless, and having left him lying on the ground, one of them
after they had gone a little distance returned, and stole his money, it was
held that he alone was guilty of larceny (/). Where two poachers were
apprehended by some gamekeepers, and being in custody called out to
one of their companions, who came to their assistance and killed one of the
gamekeepers, it was held that this was murder in aU, though the blow was
struck while the two were actually in custody, but that it would not
have been so if the two had acquiesced and remained passive in
custody (g).

Where four poachers were met by a keeper and his assistant, and after
some words had passed, three of them ran in upon the keeper, knocked
him down and stunned him ; and when he recovered himself, he saw all
of them coming by him, and one said, ' Damn ^em we've done 'em ' ;
and when they had got two or three paces beyond him, one of them
turned back and wounded the keeper in the leg, and then the men set
off and ran away ; Bolland, B., told the jury if they thought the

{d) E V. Edmeads, 3 C. & P. 390. (/) R. v. Hawkins, 3 C. & P. 392, Park, J.

(e) R. V. CoUison, 4 C. & P. 565. See R. (j) R. v. Whithorne, 3 C. & P. 394, MSS.

V. Howell, 9 0. & P. 437, 450, Littledale, J. C. S, G, Vaughan, B. See ante, p. 750.
B. V. Lee, 4 F. & F. 63.

762 Of Homicide. [book ix.

prisoners were acting in concert, they were all equally guilty of inflicting
the wound (h).

Where; upon an indictment for maUciously cutting, the question was,
how far one prisoner was concurring in the act of the other ; Park, J„
told the jury that ' If three persons go out to commit a felony, and one of
them, unknown to the others, puts a pistol in his pocket, and commits a
felony of another kind, such as murder, the two who did not concur in
this second felony will not be guilty thereof, notwithstanding it happened
while they were engaged with him in the felonious act for which they went
out ' {i).

Where on an indictment for murder it appeared that the deceased was
found tied hand and foot with string, and something forced into her
throat, by which she had been suffocated, and the house in which she was
had been forcibly entered, and the object evidently had been robbery ;
the jury were told that if they were satisfied that the deceased met with
her death from violence by any person or persons to enable them to
commit a burglary or any other felony, although they who inflicted the
violence might not have intended to kill her, all who were parties to that
violence were guilty of murder (j).

The prisoner was indicted for manslaughter, A. began a quarrel with
the deceased, and called C, out of a pubKc-house, and both went after
the deceased into a cellar and began to beat him with their fists. In the
course of the fight the deceased received from one or other of the men a
blow from a piece of timber which was in the cellar. A, was tried and
convicted of manslaughter, and Cleasby, B., is reported to have ruled that
A., having invited C. down into the cellar to beat the deceased, was
answerable for whatever was done afterwards. Lush, J., is reported to
have said that might be so, and yet that C. would not be responsible for
all that A. did. If two men concerted together to fight two other men
with their fists, and one struck an unlucky blow causing death, both would
be guilty of manslaughter. But if one used a knife or other deadly
weapon, such as this piece of timber, without the knowledge or consent of
the other, he only who struck with the weapon would be responsible for
the death resulting from the blow given by it (k).

(h) R. V. Warner, 1 Mood. 380. order to arrest any one for a felony, would

(i) R. V. Duffey, 1 Lew. 194. See R. v. clearly reduce the offence to manslaughter ;

Maoklin, 2 Lew. 225, Alderson, B. it is plain there was no reason for drawing

(?) R. V. Franz, 2 F. & F. 580. ' In R. any such distinction, and therefore the

V. Luck, 3 F. & F. 483, the marginal note report is probably erroneous.' C. S. G.

is not warranted by the case, and the case See R. v. Skeet, 4 F. & F. 931.
is very inaccurately stated. Byles, J., is (h) R. v. Caton, 12 Cox, 624. See R. v.

reported to have directed the grand jury Turner, 4 F. & F. 339, where Channell, B.,

that, " as the poachers were not engaged in ruled that it was otherwise on a charge

a felony, the use of the flail with violence of manslaughter. The ruUng of Lush, J.,

might reduce the offence to manslaughter." seems correct. In R. v. Price, 8 Cox, 96,

It is perfectly clear that there is no such Byles, J., directed the jury as to the respon-

distinction known to the law as to the sibility for homicide in a case where a sailor,

manner of arrest between cases of felony who was being maltreated by a gang of six

and misdemeanor, where the right to arrest other sailors, was stabbed with a knife by

at the time and place, and by the person one of them. But the report of the case is

attempting it, exists ; and an attack with too inaccurate to make the case of anv

such a dangerous, instrijment as a flail, in value as. an authority.

CHAP, I.] By Lawful Acts Imfroferly Performed. 763

Sect, X. — Of Killing in consequence of some Lawful Act being
Criminally or Improperly Performed, or of some Act per-
formed WITHOUT Lawful Authority,

Officers of Justice Acting Improperly.— The special protection given
by the law to ministers of justice, in the execution of their duties, has
already been stated (Z), but it is lost if they misconduct themselves in the
discharge of their duty. Thus, though in cases civil or criminal, an
oflS.cer may repel force by force, where his authority to arrest or imprison
is resisted, and will be justified in so doing even if death should be the
consequence (m) ; yet he ought not to proceed to extremities upon every
slight interruption, nor without reasonable necessity (n). And if he
should kill where no resistance is made, it will be murder : and it is pre-
sumed that the offence would be of the same magnitude if he should kill
a party after the resistance is over and the necessity has ceased, provided
that sufficient time has elapsed for the blood to have cooled (o). Again,
though where a felon flying from justice is kiUed by the officer in the
pursuit, the homicide is justifiable if the felon could not be otherwise
overtaken (p) ; yet where a party is accused of a misdemeanor only,
and flies from the arrest, the officer must not kill him, though there
is a warrant to apprehend him, and though he cannot otherwise be
overtaken ; and if he does kill him, it will in general be murder {q) ; but,
it may amount only to manslaughter, if it appears that death was not
intended (r).

So, in civil suits, if the party against whom the process is issued, flies
from the officer endeavouring to arrest him, or if he flies after being
arrested or taken in execution, and the officer not being able to overtake
him makes use of any deadly weapon, and by so doing, or by other means,
intentionally kills him in the pursuit, it will amount to murder (s).
But if the officer, in the heat of the pursuit, and merely in order to
overtake the party, should trip up his heels, or give him a stroke with an
ordinary cudgel, or other weapon not likely to kill, and death should
unhappily ensue, this will not amount to more than manslaughter,
if, in some cases, even to that offence {t).

Where a collector, having distrained for a duty, laid hold of a maid-
servant who stood at the door to prevent the distress being carried away,
and beat her head and back several times against the door-post, of which
she died : although the Court held her opposition to the officer to be a
sufficient provocation to extenuate the homicide, yet they were clearly

[l) Ante, p. 721 et seq. (r) Fost. 271. 1 East, P. C. 302.

(m) Post, p. 813. («) 1 Hale, 481. Fost. 271. 1 East,

(re) 4 Bl. Com. 180. P. C. 306, 307. Laying hold of the

(o) 1 East, P. C. 297. The crime will at piisoner and pronouncing words of arrest,

least be manslaughter. MSS. Burnet, 37. is an actual arrest ; or it may be made

(p) 1 Hale, 481. 4 Bl. Com. 179. ITost. without actually laying hold of him, if he

271. But if he may be taken in any case submit to the arrest. Horner v. Battyn

without such severity, it is, at least, man- and another, Bull. (N. P.) 62, and see 1 East,

slaughter in him who kills him ; and the P. C. 300. But see Arrowsmith v. Le

jury ought to inquire whether it were done Mesurier, 2 B. & P. (N. R.) 211, and Berry

of necessity or not. 1 Bast, P. C. 298. v. Adamson, 6 B. & 0. 528.
(j) Fost. 271, I H^]e, 481, (() Fost, 271.

764 Of Homicide. [book ix.

of opinion that lie was guilty of manslaughter in so far exceeding the
necessity of the case (m).

An officer in the impress service put one of his seamen on board a
boat belonging to C, a fisherman, with intent to bring it under the stern
of another vessel, in order too see if there were any fit objects of the impress
service on board. The boat steered away in another direction ; and the
officer pursued in another vessel for three hours, firing several shots at
her, with a musket loaded with ball, for the purpose of hitting the hal-
yards, and bringing the boat to, which was found to be the usual way,
and one of the shots imfortunately killed C. The Court said it was
impossible for it to be more than manslaughter {v). It is presumed that
this decision proceeded on the grounds that the musket was not levelled
at the deceased, nor any bodily hurt intended to him : but that as such
an act was calculated to breed danger, and not warranted by the law,
though no bodily hurt were intended, the killing was manslaughter (w).
By the Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36) it is provided,
s. 181, that 'If any ship or boat liable to seizure or examination under the
Customs Acts shall not bring to on being required so to do the master of
such ship or boat shall forfeit the sum of £20 : and on such ship or boat
being chased by any vessel or boat in His Majesty's navy, having the
proper pendant and ensign of His Majesty's ships hoisted, or by any
vessel or boat duly employed for the prevention of smuggling, having a
proper pendant and ensign hoisted, it shall be lawful for the captain,
master, or other person, having the charge or command of such vessel
in His Majesty's navy, or employed as aforesaid (first causing a gun to
be fired as a signal), to fire at or into such vessel or boat ; and such
captain, master, or other person, acting in his aid, or by his direction,
shall be, and is hereby indemnified and discharged from any indictment,
penalty, action, or other proceeding for so doing {x).

If an officer makes an arrest out of his proper district (except under
authority of statute), or if an officer has no warrant or authority at all,
he is not entitled to the special protection of the law ; and if he purposely
kills the party for not submitting to such illegal arrest, it wiU be murder
in all cases, at least where an indifferent person acting in the like manner,
without any such pretence, would be guilty to that extent {y).

So if a court-martial orders a man to be flogged where it has no
jurisdiction, and the flogging kills the man, the members who concurred
in that order are guilty of murder (2).

It is no excuse for kilhng a man that he was out at night as a ghost
dressed in white for the purpose of alarming the neighbourhood. The
neighbourhood of H. had been alarmed by what was supposed to be a
ghost ; the prisoner went out with a loaded gun to take the ghost ; and
upon meeting with a person dressed in white, immediately shot him.
M'Donald, C.B., Rooke and Lawrence, JJ., were clear that this was
murder, as the person who appeared as a ghost was only guilty of a mis-
demeanor ; and no one might kill him, though he could not otherwise

(m) Goffe's case, 1 Ventr. 216. s. 218, vide ante, p. 373, et seq.

(v) R. V. Phillips, 2 Cowp. 830. {y) 1 East, P. 0. 312.

W L^^^' ^- ^- ^^^- (2) Warden u. Bailey, 4 Taunt. 67,

{x) This replaces 16 & 17 Vict. c. 107, Heath, J.

CHAP. I.] By Lawful Acts Imffoperly Performed. 765

be taken. The jury, however, brought in a verdict of manslaughter ;
but the Court said that they could not receive that verdict ; and told the
jury that if they believed the evidence they must find the prisoner guilty
of murder ; and if they did not believe the evidence, they should acquit
the prisoner. The jury then found the prisoner guilty (a).

Upon a trial for murder, it appeared that the prisoner, an excise officer
being in the execution of his office, had seized with the assistance of
another person, two smugglers in the act of landing whiskey, contrary
to law. The deceased had surrendered himself quietly into the hands
of the prisoner, but shortly afterwards, when the prisoner was off his
guard, he assaulted him violently with an ash stick, which cut his head
severely in several places, and he lost much blood, and was greatly weak-
ened in the struggle which succeeded. The officer, fearing the deceased
would overpower him, and having no other means of defending himself,
discharged a pistol at the deceased's legs, in the hopes of deterring him
from any further attack, but the discharge did not take effect, and the
deceased prepared to make another assault. Seeing this, the prisoner
warned him to keep off, telling him that he must shoot him if he did not ;
but the deceased disregarded the warning, and rushed towards him to
make a fresh attack ; he thereupon fired a second pistol and killed him.
Holroyd, J., told the jury, ' An officer must not kiU for an escape, where
the party is in custody for a misdemeanor ; but if the prisoner had reason-
able ground for believing himself to be in peril of his own life, or of bodily
harm, and no other weapon was at hand to make use of, or if he was
rendered incapable of making use of such weapon by the previous violence
that he had received, then he was justified. If an affray arises, and blows
are received, and weapons used in heat, and death ensues although the
party may have been at the commencement in the prosecution of some-
thing unlawful, still it would be manslaughter in the killer. In this case
it is admitted that the custody was lawful. The question is, whether,
under all the circumstances, the deceased being in the prosecution of an
illegal act, and having made the first assault, the prisoner had such reason-
able occasion to resort to a deadly weapon to defend himself, as any
reasonable man might fairly and naturally be expected to resort to ' (b).

Gaolers and their officers are under the same special protection as
other ministers of justice ; but in regard to the great power which they
have over their prisoners, the law watches their conduct with a jealous
eye, and they must not exceed the necessity of the case in the execution
of their duty. The coroner must hold an inquest upon the body of every
person who dies in prison (c). If the death was owing to cruel and
oppressive usage upon the part of the officer of the prison, or, to speak in
the language of the law, to duress of imprisonment, it will be deemed wilful
murder in the person actually guilty of such duress {d).

A gaoler, knowing that prisoner infected with the small-pox lodged
in a certain room in the prison, confined another prisoner against his will

(o) R. V. Smith, 0. B. Jan. 1804, MS. i;. 71), s. 3 (1).
Bayley, J. The prisoner was reprieved. {d) Fost. 321, 322. 1 Hale, 466. E. v.

4 Bl. Com. 201 n. Huggina, 2 Str. 882. See R. v. Allen, 7 C.

(6) R. V. Forster, 1 Lew. 187. & P. 153, and R. v. Green, 7 C. & P. 156,

?66 Of Homicide. , tsooK ix.

in the same room. The second prisoner, who had not had the disease,
of which fact the gaoler had notice, caught the disease, and died of it ;
this was held to be murder (e).

H., the warden of the Fleet prison, appointed one G. as his lawful
deputy, G. had a servant, B., whose business it was to take care of the
prisoners, and particularly of one A. ; and B. put A. into a new-built
room, over the common sewer, the walls of which were damp and un-
wholesome, and kept him without fire, chamber pot, or other necessary
convenience, for forty-four days, when he died. It appeared that B.
knew the unwholesome situation of the room, and that H. knew the
condition of the room fifteen days at least before the death of A., as he
had been once present at the prison, and seen A. under such duress of
imprisonment, and turned away ; at which time B. shut the door of the
room, in which A. continued till he died. It was found that A. had
sickened and died by duress of imprisonment, and that during the time
6. was deputy, H. sometimes acted as warden. Upon these facts the
Court were clearly of opinion that B. was guilty of murder. But they
thought that H. was not guilty, as it could not be inferred, from merely
seeing the deceased once during his confinement, that H. knew that his
situation was occasioned by the improper treatment, or that he consented
to the continuance of it ; and they said, that it was material that the
species of duress, by which the deceased came to his death, could not be
known by a bare looking-in upon him. H. could not know the circum-
stances under which he was placed in the room against his consent, or
the length of his confinement, or how long he had been without the decent
necessaries of life : and it was likewise material that no application was
made to H., which perhaps might have altered the case. And the Court
seemed also to think that as B. was the servant of G., and G. had the
actual management of the prison, the accidental presence of the principal
would not amount to a revocation of the authority of the deputy (/).

An assault upon a gaoler, which would warrant him (apart from
personal danger) in killing a prisoner, must, it should seem, be such from
whence he might reasonably apprehend that an escape was intended,
which he could not otherwise prevent [g).

Execution of Sentence. — In the execution of sentence upon criminals,
the execution ought not to vary from the judgment ; for if it does, the officer
will be guilty of a felony at least, if not of murder {h). And in con^
formity to this rule, it has been held, that if the judgment wete tO be
hanged, and the officer beheaded the party, it was murder {i) ; and that
even the King could not change the punishment of the law by altering the
hanging or burning into beheading, though, when beheading was part of
the sentence, the King might remit the rest {j) . But others have thought,

(e) Fost. 322, referring to Castell v. affray.
Bambridge, 2 Str. 854, an appeal of murder. (h) 1 Hale, 501. 2 Hale, 411. 3 Co.

(/) R. V. Huggins, 2 Str. 882; 2 Ld. Inst. 52, 211. 4 Bl. Com. 179. See R. v.

Raym. 1574; 92 E. R. 518; 9 St. Tr. 111. Antrobus, 2 A. & E. 788.
Fost. 322. 1 East, P. C. 331. (j) 1 Hale, 433, 454, 466, 501. 2 Hale,

(g) 1 East, P. C. 331, citing 1 MS. Sum. 411. 3 Co. Inst. 52. 4 Bl. Com. 179.
145, aemb. Pult. 120, 121. In 1 Hawk. (j) 3 Co. Inst. 52. 2 Hale, 412. In the

c. 28, s. 13, it is said that if a criminal in case of treason the mode of execution can

trying to break the gaol assaults the gaoler now be altered from hanging to beheading,

he may be lawfully killed by him in the 54 Geo. III. o. 146, s. 2.

dilAP. t;] Sy Lawful Acts Improperty Performed. 767

more justly, than this prerogative of the Crown, founded in mercy and
immemorially exercised, was part of the common law (k) ; and that
though the King could Hot by his prerogative vary the execution so as to
aggravate the punishment beyond the intention of the law, yet he might
mitigate the pain of infamy : and accordingly that an officer, acting upon
a warrant from the Crown for beheading a person under sentence of death
for felony, would not be guilty of any offence (l). But the rule may apply
to an officer varying from the judgment of his own head, and without
warrant or the colour of authority (m). And if an officer, whose duty it
is to execute a sentence of whipping, should exceed all boiinds of
moderation, and thereby cause the party's death, it is said that he will
at least be guilty of manslaughter {n).

Discipline at Sea. — Persons on board ship are necessarily subjected
to something like a despotic government, and it is extremely important
that the law should regulate the conduct of those who exercise dominion
over them (o). In vessels belonging to the Eoyal Navy the correction of
seamen is regulated by the Naval Discipline Act (29 & 30 Vict. c. 109)
and the King's Regulations and Admiralty Ijistructions (p). The discipline
of British merchant ships is governed by sects. 220-228 of the Merchant
Shipping Act, 1894 (57 & 58 Vict. c. 60). In a case of manslaughter
against the captain and mate of the vessel, by accelerating the death of
a seaman really in ill health, but whom, they allege, they believe to be a
skulker, that is, a person endeavouring to avoid his duty, the question is
(in determining whether it is a slight or aggravated case), whether the
phenomena of the disease were such as would excite the attention of
humane and reasonable men ; and, in such a case, if the deceased is taken
on board after discharge from a hospital it is important to inquire
whether he was sent on board by the surgeon of the hospital as a person
in a fit state of health to perform the duties of a seaman (q).

Domestic and Scholastic Correction. — Parents, masters, and other
persons having authority in foro domestico, may inflict resonable chas-
tisement on those under their care, such as children, pupils, or apprentices,
and if death ensues without their fault, it will not be felony (r). In the
case of a schoolmaster the right is said to exist by delegation from the parent
or guardian of the child : and the delegation is not limited to acts of the
child within four walls of the school, even in a day school (s). But if the
correction exceeds the bounds of due moderation, either in the measure of
it, or in the instrument used, the death ensuing will be either murder or
manslaughter, according to the circumstances of the case. Where the
fact is done with a dangerous weapon, improper for correction, and likely

{k) Foat. 270. F. N. B. 144 h. 19 Rym. 271. Lamb v. Burnett, 1 Cr. & J. 291.

Peed. 284. (p) See official edition of 1906.

(/) Fost. 268. 4 Bl. Com. 405. 1 East, (q) R. ■;;. Leggett, 8 C. & P. 191, Alder-

P. C. 335. son, B., Williams and Coltman, JJ.

(m) Female traitors used in mercy to be (r) This right is expressly saved by the

strangled before they were burnt (Fost. Children Act, 1908 (8 Edw. VII. c. 67),

268). They are now liable to be hanged, s. 37, posi, p. 921. See Halliwell v. Counsell,

and not to be burnt. 30 Geo. III. u. 48, 38 L. T. (N. S.) 176.

s. 1. (s) Cleary v. Booth [1893], 1 Q.B. 465,

(») 1 Hawk. 0. 29, s. 5. As to mode of 469, Cave, J. As to the authority of under-
executing sentences of whipping, vide ante, masters to inflict chastisement, see Mansell
p. 215. V. Griffin [1908], 1 K.B. 160, PhilUmore and

(o) See The Agincourt, 1 Hagg. Adm. Walton, JJ.

768 Of Homicide. IBOOk ix.

(the age and strength of the party being duly considered) to kill or maim ;
such as an iron bar, a sword, a pestle, or great staff ; or where the party
is kicked to the ground, his belly stamped upon, and so killed, it will be
murder (t). Thus, where a master had employed his apprentice to do
some work in his absence, and on his return found it had been neglected,
and thereupon threatened to send the apprentice to Bridewell, to which
the apprentice replied, ' I may as well work there, as with such a master ' ;
upon which the master struck the apprentice on the head with a bar of
iron which he had in his hand, and the apprentice died of the blow ; it was
held murder : for if a father, master, schoolmaster, correct his child,
servant, or scholar, it must be with such things as are fit for correction,
and not with such instruments as will probably kill them ; otherwise,
under pretence of correction, a parent may kill his child ; and a bar of
iron is no instrument of correction (m).

The prisoner having employed her stepdaughter, a child of ten, to
reel some yarn, and finding some of the skeins knotted, threw at the
child a four-legged stool which struck her on the right temple, and
caused her death. The stool was of sufficient size and weight to give
a mortal blow : but the prisoner did not intend when she threw it to
kill the child. These facts were stated in a special verdict, but the
matter was considered of great difficulty, and no opinion was ever
delivered by the judges (v).

In E. V. Wiggs (w), a shepherd boy had suffered some of the sheep,
which he was employed in tending, to escape from their pen. The boy's
master, the prisoner, seeing the sheep get out, ran towards the boy, and
taking up a stake that was lying on the ground, threw it at him. The
stake hit the boy on the head, and fractured his skuU, of which fracttire
he soon afterwards died. Nares, J., after stating that every master
had a right moderately to chastise his servant (x), but that the chastise-
ment must be on just grounds, and with an instrument properly adapted
to the purposes of correction, desired the jury to consider, whether the
stake, which, lying on the ground, was the first thing the prisoner saw, in
the heat of his passion, was, or was not, under such circumstances, and
in such a situation, an improper instrument. For that the using a weapon
from which death is likely to ensue, imports a mischievous disposition ;
and the law implies that a degree of maKce attended the act, which, if
death actually happen, will be murder. Therefore, if the jury should
think the stake was an improper instrument, they would further" consider
whether it was probable that it was used with an intent to kill ; that

{t) 1 Hawk. c. 29, s. 5. 1 Hale, 454, villein shall not have any remedy.' In

473. R. V. Keite, 1 Ld. Raym. 138, 144 : R. v. Mawgridge, (12 St. Tr. 57; Kel. (J.)

91 E. R. 989. 1 33) it was held that ' If a parent or a master

(a) R. V. Grey, Kel. (J.) 64. Fost. 262. be provoked to a degree of passion by some

See R. V. Wall, 28 St. Tr. 51, 145, Mac- miscarriage of the child or servant, and the

Donald, C.B. parent or master shall proceed to correct

(j;) R.«. Hazel,! Leach, 368. 4?iie, p. 698. the child or servant with a moderate

(w) 1 Leach, 378 n. See also R. v. weapon, and shall by chance give him an

Conner, 7 C. & P. 438, ante, p. 720. unlucky stroke, so as to kill him, that is

(a:) In Combe's ease, 9 Co. Rep. 76 a, it but a misadventure. But if a parent or

is said to have been held in 33 Edw. III. master shall use an improper instrument

Trespass 253, that ' the lord may beat his in the correction, then if he kills the child

villein for cause or without cause and the or servant it is murder.'

CHAP. I.] By Lawful Acts Improperly Performed. 769

if they thought it was, they must find the prisoner guilty of murder ;
but if they were persuaded it was not done with an intent to kill, the crime
would then at most amount to manslaughter. The jury found it man-
slaughter. In this case it is presumed that the learned judge must be
understood as meaning, that if the jury should think the instrument
so improper as to be dangerous, and likely to kill or maim, the age and
strength of the party killed being duly considered, the crime would amount
to murder ; as the law would in such case supply the malicious intent ;
but that if they thought that the instrument, though improper for the
purpose of correction, was not likely to kill or maim, the crime would only
be manslaughter, unless they should also think that there was an intent
to kill («/).

Though the correction exceeds the bounds of moderation, the Court
will pay regard to the nature of the provocation, where the act is mani-
festly accompanied with a good intent, and the instrument not such as
must, in all probability, occasion death, though the party were hurried
to great excess. A father, whose son had frequently been guilty of
stealing, and who, upon complaints made to him of such thefts, had often
corrected the son for them ; at length, upon the son being charged with
another theft, and resolutely denying it, though proved against him,
beat him in a passion with a rope, by way of chastisement for the
offence, so much that he died. The father expressed the utmost horror,
and was in the greatest afHiction for what he had done, intending only
to have punished him with such severity as to have cured him of his
wickedness. The judge, by whom the father was tried, consulted his
colleague in office, and the principal counsel on the circuit, who all
concurred in opinion that it was only manslaughter ; and so it was
ruled (z).

The deceased, a girl about fifteen, with her younger sister, had been
placed, after their mother's death, under the care of an aunt, who employed
them in stay-stitching fourteen or fifteen hours a day, and, when they
did not do the required quantity of work, severely punished them with
the cane and the rod. The deceased was in consumption, and did not do
so much work as her sister, and, in consequence, was much oftener and
more cruelly punished by the aunt, who accompanied her corrections
with very violent and threatening language, and said that she was sure
that the girl was acting the hypocrite and shamming illness, and that
she had a very strong constitution. The surgeon said she died from
consumption, but that her death was hastened by the treatment she had
received. Under these circumstances, the counsel for the prosecution
thought there was not proof of malice sufficient to constitute the crime
of murder, as the aunt always alleged that she believed the girl was sham-
ming illness, and was really able to do the work required, and which it
appeared her younger sister actually did, and the Court concurred in
that opinion (a).

On an indictment for manslaughter, it appeared that the prisoner, a
schoolmaster, having the care of the deceased, a boy of thirteen or

ly) See R. V. Turner, Comb. 407-408, Serjt. Forster's MS. 1 East, P. C. 261.
cited ante, p. 698. («) «• "• Cheeseman, 7 0. & P 455,

(2) Anon. Worcester Spr. Ass. 1775, Vaughan, J.

VOL. I. 3d

770 Of Homicide. [book ix.

fourteen, wrote to his father, stating that the boy was obstinate, and
that, were he his own child, he shoitld, after warning him, as he had done,
subdue his obstinacy, by chastising him severely, and, if necessary, he
should do it again and again, and continue it again even if he held out
for hours. The father replied, ' I do not wish to interfere with your plan.'
The prisoner took the boy into a room downstairs, and beat him for about
two hours, between ten and twelve, with a thick stick ; using also a
skipping-rope. About midnight the prisoner beat him again, until about
half-past twelve, when the beating and crying suddenly stopped. About
seven the next morning, the prisoner said he had found the boy dead, and
almost stiffening. A medical examination shewed that the thighs and
other parts of the body were covered with bruises, and that there had
been profuse bleeding and extravasation of blood caused by excessive
and protracted beating, and that the immediate cause of death was
exhaustion arising therefrom. The medical witnesses stated that upon
the evidence, coupled with the prisoner's statement, the boy at seven
o'clock in the morning must have been dead about six hours ; so that
their evidence went to shew that he died about the time when the beating
was heard suddenly to cease. The prisoner had not avowed the beating
until its effects had been discovered by a post-mortem examination, and
had sent the body home so closely wrapped up that the bruises were not
detected until the coverings were removed in consequence of rumours
prevailing. There was no post-mortem examination prior to the inquest,
at which the surgeon, who was called in by the prisoner at seven o'clock
and who had only seen the boy's face, was examined, and the prisoner,
who suggested that the boy had died of disease of the heart. The stick
was at one end an inch thick ; at the other it was edged with brass about
the circumference of a sixpence, and there were holes in the shins of the
deceased corresponding therewith, and which the medical witness thought
must have been produced by poking therewith. The prisoner and his
wife had been for some time going up and down stairs engaged in washing
out the stains of blood in the night. Cockburn, C.J., said : ' By the law
of England, a parent or a schoolmaster, who for this purpose represents the
parent, and has the parental authority delegated to him, may, for the
purpose of correcting what is evil in the child, inflict moderate and
reasonable corporal punishment, always, however, with this condition,
that it is moderate and reasonable. If. it be administered for the grati-
fication of passion or of rage, or if it be immoderate and excessive in its
nature and degree, or if it be protracted beyond the child's powers of
endurance, or with an instrument unfitted for the purpose and calculated
to produce danger to life or limb ; in all such cases the punishment is
excessive, the violence is unlawful, and if death ensues it will be man-
slaughter ' [at least] ; and (after commenting on the evidence) ' It is
true that the father authorised the chastisement, but he did not, and no
law could, authorise an excessive chastisement. There can be no doubt
that the prisoner thought the boy obstinate, but that did not excuse
extreme severity and excessive punishment ' (&).

(6) B. V. Hopley, 2 F. & F. 202. ' The tainly ought to have b?!en for murder.'
indiptrapnt was fof mj^nslaughter : it oey- 0, S, G,

CHAP. I.] By Lawful Acts Improperly Performed. 771

In E. V. Griffin (c), where the father of a child two and a half years
old had beaten it with a strap, Martin, B., after consulting Willes, J.,
said : ' The law as to correction has reference only to a child capable of
appreciating correction, and not to an infant two years and a half old.
Although a slight slap may be lawfully given to an infant by her mother,
more violent treatment of an infant so young by her father would not
be justifiable ; and the only question for the jury to decide is whether
the child's death was accelerated or caused by the blows inflicted by the
prisoner.'

Careless Performance of Ordinary Duties.— If persons, in pursuit of
their lawful and common occupations, see danger probably arising to
others from their acts, and yet persist, without giving sufficient warning
of the danger, and cause death, such killing seems in law to be murder.
Thus, if workmen throwing stones, rubbish, or other things from a house,
in the ordinary course of their business, happen to kill a person under-
neath, the question wiU be, whether they deliberately saw the danger, or
betrayed any consciousness of it. If they did, and yet gave no warning,
the act will amount to murder from its gross impropriety (d). So, if a
person driving a cart or other carriage happens to kiU another, and it
appears that he saw, or had timely notice of the mischief likely to ensue,
and yet drove on, it will be murder (e). Such acts are deliberate, and
manifest a heartless disregard of social duty (/).

Where persons employed about a lawful occupation, from which
danger may probably arise to others, neglect the ordinary precautions, it
will be manslaughter, at least, on account of such neghgence (g). Thus,
if workmen throw stones, rubbish, or other things from a house, in the
ordinary course of their business, by which a person underneath happens
to be killed, if they did not look out and give timely warning to such as
might be below, and there was even a small probabiKty of persons passing
by, it will be manslaughter (h). It was a lawful act, but done in an
improper manner. It has, indeed, been said, that if this be done in the
streets of London, or other populous towns, it will be manslaughter, not-
withstanding such caution used (i). But this must be understood with
some limitation. If it is done early in the morning, when few or no
people are stirring, and ordinary caution is used, the party may be excus-
able ; but when the streets are full, such ordinary caution will not suffice ;
for, in the hurry and noise of a crowded street, few people hear the
warning, or sufficiently attend to it (/).

On an indictment for the manslaughter of a lunatic, it appeared that
the prisoner, who was an attendant at a lunatic asylum, turned on the

(d) 3 Co. Inst. 57. 4 Bl. Com. 192. 1 cam aut vicinakm id factum est, nequc pro-
East, P. C. 262. clamavit, ut casus evitari posset, culpoe reus

(e) 1 Hale, 476. Fost. 263. 1 East, est ; sed si proclamavit, nee ille curavit
P. C. 262. prcecavere, extra culpam est putator. Mque

(/) Fost. 263. As to when a person extra culpam esse intelligitur si seorsum a

causing death by negligently driving a via forte, vel in medio fundo coedehat, licet

vehicle is guilty of manslaughter, see post, non proclamavit, quia in eo loco nulli extraneo

tit. ' Manslaughter,' p. 794. jusfuerat versandi. Just. Inst. L. iv. tit. iii.

(g) Fost. 262. 1 East, P. C. 262. s. 5.

\K) Fost. 262. 1 Hale, 475. Item si (i) R. v. Hull, Kel. (J.) 40.

putator, ex arbore ramo dejecta, servum tuum (j) Fost. 263.

3d2

772 Of Homicide. [book ix.

hot-water tap by mistake into a bath in which accidentally a lunatic had
remained after having been told by the prisoner to get out. The prisoner
thought the man had got out of the bath, and his attention being called
away for the moment, he did not observe that the man was still there.
Lush, J., directed the jury that if they took this view of the case it was
an accident {h).

Persons using Dangerous Articles or Instruments. — As the degree of
caution to be employed depends upon the probability of danger, it follows
that persons using articles or instruments, in their nature peculiarly
dangerous, must use such caution as the particular circumstances may
require. Thus, though where one lays poison to kill rats, and another
takes it and dies, this is misadventure : yet it must be understood to have
been laid in such manner and place as not easily to be mistaken for
proper food; for to lay it where it might be mistaken for food would
be grossly negligent, and might in some cases amount to manslaughter {I).

A., having deer frequenting his cornfield, which was not within the pre-
cincts of any forest or chase, set himself in the night-time to watch in a
hedge, and set B., his servant, to watch in another corner of the field, with
a gun charged with bullets, giving him orders to shoot, when he heard any
bustle in the corn by the deer. The master afterwards improvidently
rushed into the corn himself, and the servant, supposing it to be the deer,
shot and killed the master. Hale, C.J., ruled this to be misadventure,
on the ground that the servant was misguided by his master's own
direction, and was ignorant that it was anything else but the deer. He
thought, however, that if the master had not given such direction, which
was the occasion of the mistake, it would have been manslaughter,
because of the want of due caution in the servant to shoot before he
discovered his mark (m). But it is suggested by East that if, from all
other circumstances of the case, there appeared a want of due caution
in the servant, it does not seem that the command of the master could
supply it, much less could excuse him in doing an unlawful act : and that
the excuse of having used ordinary caution can only be admitted where
death happens accidentally in the prosecution of some lawful act {n). On
the same principle as to due caution it was ruled to be misadventure,
where a commander coming upon a sentinel in the night, in the posture
of an enemy, to try his vigilance, is killed by him as such ; the sentinel
not being able to distinguish his commander, under such circumstances,
from an enemy (o).

The caution which the law requires, is not the utmost caution that
can be used : reasonable caution is sufiicient, such as is usual and ordinary
in similar cases ; such as has been found, by long experience in the ordinary

{k) R. V. Finney, 12 Cox, 625. human being resulted from infraction of these
(I) 1 Hale, 431. 1 East, P. C. 266. The Acts it would seem to be manslaughter
laymg of poisoned grain and meat for the (m) 1 Hale, 476. The learned autlior
purpose of kilhng animals is unlawful unless seems to think that the offence amounted
it is done in a dwelling-house or enclosed to manslaughter (1 Hale, 40) ; but con-
land attached thereto for rats, mice or siders the question as of great' difficulty
small vermin. 1 & 2 Will. IV. c. 32, s. 3 The ca'se was, however, determined at
(ground game); 26 & 27 Vict. c. 113 Peterborough, as stated in the text,
(poisoned gram or seed) ; 27 & 28 Vict. (re) 1 East, P. C. 266.
c. 115 (poisoned flesh). If the death of a (o) 1 Hale, 42.

OhAp. 1.]

Concealing Birth.

773

course of things to answer in the end (p). But in order to create criminal
liability for homicide it is necessary to prove a grosser neglect of proper
caution than would suffice to create a civil liabihty [q).

PART II.— CONCEALMENT OF BIRTH.

By the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100),
s. 60, ' If any woman shall be delivered of a child, every person who shall,
by any secret disposition of the dead body of the said child, whether such
child died before, at, or after its birth, endeavour to conceal the birth
thereof, shall be guilty of a misdemeanor, and being convicted thereof
shall be liable, at the discretion of the Court, to be imprisoned for any
term not exceeding two years, with or without hard labour : Provided
that if any person tried (r) for the murder of any child shall be acquitted
thereof, it shall be lawful for the jury, by whose verdict such person shall
be acquitted, to find, in case it shall so appear in evidence, that the child
had recently been born, and that such person did, by some secret disposition
of the dead body of such child, endeavour to conceal the birth thereof,
and thereupon the Court may pass such sentence as if such person had
been convicted upon an indictment for the concealment of the birth ' (s).

Under the former enactments (t) the mother only could be tried for
the offence, and cases sometimes occurred where endeavours had been
made to conceal the birth of children, and there was no evidence to prove
that the mother participated in those endeavours, though there was
sufficient evidence that others did so, and under such circumstances,
all must have been acquitted (u). The above section is so framed as to
include every person who uses any such endeavour ; and it is quite im-
material under it whether there be any evidence against the mother or not.

(p) R. V. Hughes, 26 L. J. M. C. 102.

iq) R. V. Lowe, 3 C. & K. 123, Camp-
bell, C.J. R. V. Franklin, 15 Cox, 163,
Field, J. Hammack v. White, 31 L. J.
C.P. 131 ; 11 C. B. (N. S.) 588, Willes, J.

(r) Whether on indictment or on the
coroner's inquisition. R. v. Cole, 2
Leach, 1095; 3 Camp. 371. R. v. May-
nard, R. & R. 240.

(s) Framed from 9 Geo. IV. o. 31, s. 14
(E) ; and 10 Geo. IV. c. 34, a. 17 (I). The
words ' by any secret disposition ' have
been substituted' for 'by secret burying
or otherwise disposing of the dead body,'
and it is no longer material whether the
secret disposition was temporary or per-
manent.

(t) 43 Geo. III. c. 58, which repealed
21 jac. I. c. 27, provided that trials, in
England and Ireland, of women charged
with the murder of any issue of their
bodies, which would by law be bastard,
should proceed by the like rules of evi-
dence and presumption as were allowed
to take place in respect to other trials for
murder ; and that the jury, by whose
verdict any prisoner charged with such
murder aforesaid should be acquitted.

might find, ' that the prisoner was de-
livered of issue of her body, male or female,
which, if born alive, would have been
bastard ; and that she did, by secret
burying, or otherwise, endeavour to con-
ceal the death thereof.' This provision
could only be acted upon where the child
was a bastard and where the party was
charged with murder by an inquisition or
an indictment. It was repealed by 9
Geo. IV. c. 31. In Scotland the enact-
ment 49 Geo. III. c. 14 difEers from 43
Geo. III. u. 58, and does not make that
concealment a matter which can only be
found by the jury upon the trial of an
indictment for murder, but enacts (s. 2)
' that if any woman in Scotland shall con-
ceal her being with child during the whole
period of her pregnancy, and shall not call
for and make use of help or assistance in
the birth, and if the child be found dead
or be missing, the mother, being lawfully
convicted thereof, shall be imprisoned for
a period not exceeding two years, in such
common gaol or prison as the Court before
which she is tried shall direct and appoint. '
(m) R. v. Waterage, 1 Cox, 338. R. u.
Skelton, 3 C. & K. 119.

774 Of Homicide. [book ix.

A person assisting the mother in concealing a birth will come within the
terms of this section as a principal [vide ante, Book I. Chapter V.).

Secret Disposition.— Whether there is any evidence of a secret dis-
position within the statute is a question which depends upon the circum-
stances of each particular case. The most public exposure may be a
secret disposition, as, for instance, in the middle of Dartmoor, or on the
top of a mountain in Scotland in winter. It is for the jury to consider {v).
The prisoner put the dead body of her child over a wall which was four
and a half feet high, and divided a yard from a field. The yard was at the
back of a public-house, and entered from the street by a narrow passage.
The prisoner did not live at the public-house, and must have carried the
body from the street up the passage to the yard. The field was grazed
by the cattle of a butcher, and the only entrance to it was through a gate
leading from the butcher's own yard. There was no path through the
field, and a person in the field could only see the body in case he went
up to the wall, close against which the body lay. A little girl, picking
flowers in the field found the body of the child, twenty yards from the
gate. There was nothing on or over the body to conceal it. Upon a
case reserved it was held that there was evidence to go to the jury of a
secret disposition of the dead body of the child, and a conviction for
endeavouring to conceal the birth of the child, by secretly disposing of
its dead body, was confirmed {w).

But where the dead body of a child was put into a box, and this box
was put into a larger box, neither being locked or fastened, but both being
closed, and the boxes were left in a bedroom, but in such a position as
to attract the attention of those who daily resorted to the room, the jury
were directed that this was not a secret disposition of the body (a;).

Where on an indictment for endeavouring to conceal the birth of her
child, it was proved that, the prisoner appearing ill, her mistress sent for
a doctor, who asked the prisoner if she had been confined, and she said she
had been ; and the doctor asked her what she had done with the child,
and she said it was in a box in her bedroom, and he went to the room and
found the child in an open box, having the cover lifted ; Byles, J., told
the jury that ' there must be a secret disposition for the purpose of con-
cealing the birth. The concealment must be by a secret disposition of the
body, and a disposition could only be secret by placing it where it was not
likely to be found. Secrecy was the essence of the offence. Could they
say that an open box in the prisoner's bedroom was a secret disposition ?
It was for them to say, but in his opinion it was not ' (z).

But where the body is placed in an unlocked box, all the attendant
circumstances must be taken into consideration to determine whether
or not an offence has been committed {a). Where the body was taken
out of the house, and was placed in a locked pound which was open to the
sky and surrounded by a wall five feet high along which there was a public

(v) Bovill, C.J., in R. v. Brown, L. R. for the judge, whether there has been

1 C. C. R. 244. a secret disposition of the body, i.e., a

(w) R. V. Brown, vhi supra. disposing of it in such a place as that the

(a;) R.t;. George, 11 Cox, 41, Bovill, C.J. offence may have been committed. See

(z) R. V. Sleep, 9 Cox, 559. But Martin, R. v. Clarke, 4 P. & F. 1040, Martin, B.
B., held that it was a question of law ia) R. v. Cook, 11 Cox, 542, Lush, J.

CHAP. T.] Concealing Birth. 775

footway, it was teld that there was no secret disposition of the body (6).
Where the prisoner put the dead body of her child on the bed and covered
it with a petticoat, Jelf, J., held that there was no secret disposition and
directed an acquittal (c).

Under 21 Jac. I. c. 27 (rep.), evidence was always allowed of the
mother's having made provision for the birth, as a circumstance to shew
that she did not intend to conceal the death {d). So, under 9 Geo. IV.
c. 31, s. 14 (rep.), where the body of a child was found among the feathers
of a bed, but it did not appear by whom it had been placed there, and
the prisoner had prepared clothes for the child, and sent for a surgeon
at the time of her confinement, an acquittal was directed (e). But the
fact that the prisoner may have previously allowed the birth to be known
to some persons is not conclusive evidence negativing concealment (/).

The prisoner and one T. were indicted under 43 Geo. III. c. 58 (rep.)
for the murder of the prisoner's bastard child ; it was a seven months'
child, and from the state in which it was found the probability was that it
was stillborn. T., when questioned immediately after the child's birth,
wholly denied it, though she must have known it. The prisoner threw
the child down the privy ; and the jury found this an endeavour to
conceal the birth. On a case reserved, it was held that this was evidence
of an endeavour to conceal the birth (gr).

The sending for a female to attend at the beginning of the labour,
and the fact of its being known to the mother of the woman and others
that she was pregnant, were no bar to a conviction for concealing the
birth, under 9 Geo. IV. c. 31, s. 14 (rep.), but only evidence for the con-
sideration of the jury. If the dead body of the child were buried, or
otherwise disposed of by an accomplice of the mother in her absence, the
accomplice acting as her agent in so doing, she might be convicted under
the last-mentioned Act of endeavouring to conceal the birth Qi).

In order to bring a case within 9 Geo. IV. c. 31, s. 14, the disposition
of the body of the child must have been complete. The prisoner was
found going across a yard in the direction towards a privy with a
bundle of cloth sewed up, with the body of a child in it, and was
stopped ; Gurney, B., interposed and said, that the prisoner could
not be convicted under that Act, the offence not being complete ;
' the body must be buried or otherwise disposed of, to bring the case
within the Act. Here she was interrupted in the act, probably, of dis-
posing of the body, but the act was incomplete ' {i). So where it appeared
that the alleged concealment was the taking of the body immediately
after the birth to a sister, living at a distance, for the purpose of having
it buried in a churchyard, Erie, J., considered this did not amount to a
concealment {j). But it was afterwards held that any concealment of

(6) R. V. Nixon, 4 F. & F. ] 040n., Martin, (c) R. v. Roaenberg, 70 ,T. P. 264, Jelf, J.

B. Where the naked dead body of a cliild (d) 1 East, P.O. 228, 229.

was exposed in a public street where many (e) R. v. Higley, 4 C. & P. 336, Park, J.

persons were certain to pass and repass, (/ ) R. v. Douglas, 1 Mood. 480 ; 7 C. &

and the exposure was calculated to out- P. 644.

rage public decency, Denman, J., held (g) R. v. Cornwall, R. & R. 336, and

that this was a nuisance at common law, MS. Bayley, .1.

but that there was no secret disposition of (h) R. v. Bird, 2 C. & K. 817.

the dead body within this section. R. v. (i) R. v. Snell, 2 M. & Rob. 44.

Clark, 15 Cox", 171. (?) P- "• Waterage, 1 Cox, 338.

776

Of Bomicide.

[BOOK IX.

the body, whether intended to be final or temporary, was within that
Act (k).

Where on an indictment under 9 Geo. IV. c. 31, s. 14, for endeavouring
to conceal the birth of a child, it appeared that the prisoner was delivered
in a privy ; that the child dropped from her there into the soil, and that
there she left it, and the jury thought that she went into the privy for
the purpose of being delivered there, and for the purpose thereby
of concealing the birth ; upon a case reserved, the judges thought,
upon the wording of the section, it was necessary something should
be done by the prisoner after the birth to bring the case within that
section (l). So in a similar case, where the prisoner had denied
her pregnancy and the birth, and the body of the child was found in
a privy ; Patteson, J., told the jury that the offence was not merely
the endeavouring to conceal the birth of a child, but that the prisoner,
to come within 9 Geo. IV. c. 31, s. 14, must have endeavoured to conceal
the birth by secret burying, or otherwise disposing of the dead body of
the child ; and it was essential to the commission of this offence that
she should have done some act of disposal of the body after the child was
dead. If she had gone into the privy for another purpose, and the child
came from her unawares, and fell into the soil and was suffocated, she
must be acquitted, notwithstanding her denial of the birth of the child,
because she did not come within the provisions of the Act, unless she
had done something with the child after it was dead. If there had been
evidence that the child was born elsewhere, and was, after it was dead,
carried by her to this place, and thrown in, that would be a disposing of
the body within the Act (to). It is a question for the jury in such a case
whether the prisoner threw the dead body into the privy, or whether it
fell from her into it (n).

A woman delivered of a child born alive endeavoured to conceal the
birth thereof by depositing the child while alive in the corner of a field,
leaving the infant to die from exposure, which it did, and the dead body
was afterwards found in the corner. Upon a case reserved it was
held that she could not be convicted of concealing the birth of the
child (o).

On an indictment for murder it appeared that the child was discovered

(k) Pv. V. Parnham, 1 Cox, 349, Patte-
son, J., where the body was placed in the
bottom of a bonnet-box in the middle of
some linen, and was wrapped in a, petti-
coat with a bonnet on the top. R. v.
Goldthorpe, 2 Mood. 244, where the body
was placed between the bed and mattress.
R. V. Perry, Dears. 471 : 24 L. J. M. C. 137 :
6 Cox, 531, where the body was placed
under a bolster upon which the prisoner
was partly lying. R. v. Gogarty, 7 Cox,
107 (Ir.), where the body was on a bed
covered by a quilt, the prisoner being
seated on the side of the bed. But in R.
B. Opie, 8 Cox, 332, where the body was
found behind a door of a privy in a tub
covered with a cloth, Martin, B., stopped
the case and expressed his agreement with
the dissenting judgment of Pollock, C.B.,

in R. V. Perry, supra.

(I) R. V. Wilkinson, M. T. 1829. MSS.
Bayley, J. 3 Burn's Justice (ed. by
D. & W.), 348.

(m) R. V. Turner, 8 C. & P. 755, Patte-
son, J. Where the evidence strongly
tended to shew that the child had been
born in a privy, and there was no evidence
to shew any act done to it by the prisoner
after its death, Coleridge, J., approved of
the jDreceding case, and counsd for the
prosecution offered no evidence, as the
case could not be distinguished from R. v.
Turner; R. v. Nash, Hereford Spr. Ass.
1841. MSS, C, S. G. Cf. R. v. Derham,
1 Cox, 56, Coleridge, J.

in) R. V. Coxhead, 1 C. & K, 623, Piatt, B.

(o) R. V. May, 10 Cox, 448. R. v. Bell,
Ir. Bep. 8 C. L, 542.

CHAP. T.] Concealing Birth. 117

in an outhouse, alive, but concealed from view by four bundles of rick-
pegs lying horizontally in front and partly over it, but not touching it :
the child was left as it was found, an^ about an hour afterwards the rick-
pegs were found to have been partially removed, and placed on one side
of the child, which was dead, and there was evidence to shew that the
prisoner alone had been in the outhouse during the hour. For the
prosecution it was urged that if the prisoner after the death of the child
re-covered it, that would be a secret disposal of the body. Lord Camp-
bell, C.J. : ' I have carefully examined the statute (9 Geo. IV. c. 31, s. 7)
and the facts with reference to the point suggested by the counsel for the
prosecution. Any objection that might have arisen, that there was no
attempt to conceal the dead body of the child, is, I think, removed in
the manner suggested ; for there cannot be any reasonable doubt that
the prisoner visited the outhouse after the child was dead, and although
she did not remove it, any replacing of the clothes or other things by
which the body was concealed from view, would, I think, be an endeavour
to conceal by a secret disposal of the dead body within the statute ' (p).

But where the dead body was found on the floor of an attic, wrapped
in bed-sheets which had been removed from the room below ; the head
of the child separated from the body, and a knife lying near it, and the
body was in the middle of the room, Talfourd, J., held that there was
no evidence of an endeavour to conceal (q).

Where on an indictment for murder, it appeared that the prisoner
had denied that she was in the family way ; but in consequence of a
stain of blood having been discovered in her bedroom she was questioned,
and then said that she had taken the child away, and put it in a sheet of
water in a park and she accompanied the constable thither, and pointed
out where she had thrown in the body, and it was found wrapped in a
towel and dressed in a cap and shirt ; and she afterwards stated that
she had put away the body in a box in her room for two days, after which
she threw it into the water, and she said she should have had it buried in
the churchyard only she was afraid of provoking her father : Coltman, J.,
told the jury that the offence contemplated by the Act (9 Geo. IV.
c. 31, rep.) was the endeavour to conceal the birth from the world at
large, and' not from any individual. The statute did not apply to indi-
viduals, but to society in general. If, therefore, the secret disposal of
the dead body arose from an endeavour to conceal the birth from some
private individual, and not from the world at large, then the offence con-
templated by the statute had not been committed ; and if the jury
believed that the prisoner was really actuated by the dread of provoking
her father's displeasure, she was not guilty of this offence (r).

Where on an indictment under the Act (9 Geo. IV. c. 31, rep.) for
concealing the birth, a surgeon stated that the remains were those of a
child of which the mother must have gone from seven to nine months ;
Erie, J., told the jury that, ' this offence cannot be committed unless the
child had arrived at that stage of maturity at the time of birth that it
might have been a living child. It is not necessary that it should have

(p) R. V. Hughes, 4 Cox, 447. Sed (?) R. v. Goode, 6 Cox, 318.

qucere. (»■) R- *'■ Morris, 2 Cox, 489.

778 Of Homicide. [bookiix.

been born alive, but it must have reached a period when, but for some
accidental circumstances, such as disease on the part of itself, or of its
mother, it might have been born alive. There is no law which compels
a woman to proclaim her own want of chastity ; and if she had mis-
carried at a time when the foetus was but a few months old, and therefore
could have had no chance of life, you could not convict her upon this
charge. No specific limit can be assigned to the period when the chance
of life begins ; but it may, perhaps, be safely assumed that, under seven
months, the great probability is that the child would not be born alive ' (s).

In a case under 21 Jac. I. c. 27 (rep.), it appeared from the view of
the child and by apparent probabilities, that it had not arrived at its
debitum partus tem/pus, as it wanted hair and nails, the case was considered
as not being within that statute, on account of there being presumptive
evidence that the child was born dead ; but under such circumstances it
was left to the jury upon the evidence, as at common law, to say whether
the mother was guilty of the death {t).

The dead body of the child must be found and identified on an
indictment for attempting to conceal the birth. A woman apparently
pregnant took a room at an inn in Stafford. On August 28 she
received a Rugby newspaper by post with the Rugby postmark on it.
On the same day her appearance and the state of her room seemed
to shew that she had been delivered of a child. She left the inn next
day for Shrewsbury, carrying a parcel. In the afternoon of that
day a dead body of a child was found at Stafford railway station,
wrapped in a Rugby newspaper dated August 27. There is a railway
from Stafford to Shrewsbury, but no evidence was given that the prisoner
had been at Stafford station. It was held that this evidence was not
sufficient to identify the body of the child found as the child of the
prisoner (m).

An indictment for concealing the birth of a child must expressly allege
the child to be dead, for it is only an offence to conceal the dead body («).

An indictment under 9 Geo. IV. c. 31, s. 14 (rep.), stated that the
prisoner endeavoured to conceal the birth of her child ' by secretly dis-
posing of the dead body ' ; and it was objected that the mode of disposal
ought to be stated to enable the Court to see whether it amounted to the
complete disposition contemplated by the statute, one mode was specified
in the Act, and any other ought to be stated ; and Maule, J., expressing
a strong opinion that the objection was good, counsel for the prosecution
declined to press the case (w).

(s) R. V. Berriman, 6 Cox, 388. Ac- Parke, J. MSS. C. S. G. R. v. Perkin,

cording to Martin, B., a fcetus not bigger 1 Lew. 44, Parke, J.

than a man's finger, but having the shape («,) R. v. Hounsell, 2 M. & Rob. 292.

of a child, IS a child within the statute. But as the present clause has the words

R. ^.Colmer, 9Cox, 506,5ed2«(Ere. In R. 'any secret disposition,' it should seem

V. Hewitt 4 F. & F. 1101, Montague that an indictment in this form would be

Smith, J., left it to the jury to say whether good ; for every secret disposition is in-

what the prisoner concealed was a child, eluded. See HoUoway v. R., 17 Q.B 317

°^n^9 °w T ^-CfiQ™' '^''®™ ^* ^'^ ^^'"i t^^-* » <=°"°* fo"^ '^i'i'ng

i\ "tj 4i??i- ^'"- escape was good, though it did not

(M) K. V. Wilhams, 11 Cox, 684, Mon- state the means used, because the words

tague Smith, J. See R. v. Bate, 11 Cox, of 4 Geo. IV. c. 64, s. 43 (rep.) were ' shall,

i\ -n, -r^ ^y ^"^2/ means whatever, aid.'

(v) R. V. Davis, Hereford Spr. Ass. 1829,

CHAP. I.]

Of Manslaughter.

779

An indictment under the above enactment, alleging that the prisoner
did cast the dead body of her child into the waters and filth in a privy,
and ' did thereby then and there unlawfully dispose of the dead body of
the said child, and endeavour to conceal the birth thereof,' was held
sufficient ; for the word ' thereby ' applied both to the disposal and to the
endeavour ; and the indictment need not allege that the child died before,
at, or after its birth {x).

PART III.— OF MANSLAUGHTER.
Sect. I. — Definition and Punishment.

The felony of manslaughter consists of the killing of man by man
without malice aforethought (y), but without legal justification or ex-
cuse {z), i.e., under circumstances rendering the killing unlawful or legally
culpable. The death must ensue within a year and a day of the culpable
act or issue assigned as its cause {a). It is not defined by any statute,
and the nearest approach to a statutory definition is the declaration in
sect. 6 of the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100),
that ' it shall be sufficient in any indictment for manslaughter to charge
that the defendant did feloniously kill and slay the deceased ' (6).

By sect. 5 of that Act, ' whosoever shall be convicted of manslaughter
shall be liable at the discretion of the Court to be kept in penal servitude
for life . . . (c) or to pay such fine as the Court shall award, in addition to
or without any other such discretionary punishment as aforesaid ' (c).
Where the person convicted is under sixteen, he is dealt with under sects.
102, 104 of the Children Act, 1908 {d).

Accessories. — In order to make an abettor to manslaughter a
principal in the felony, he must be present aiding and abetting the fact
committed (e). It was formerly considered that there could not be any
accessories before the fact in any case in manslaughter, because it was
presximed to be altogether sudden, and without premeditation (/) : and
it was laid down, that if the indictment be for murder against A., and that
B. and C. were counselling and abetting as accessories before only (and
not as present aiding and abetting, for such are principals), if A. be found
guilty only of manslaughter, and acquitted of murder, the accessories
before will be thereby discharged (g). But the position ought to be limited
to those cases where the killing is sudden and unpremeditated ; for there

{x) R. V. Coxhead, 1 0. & K. 623,
Piatt, B.

(y) Ante, pp. 655 et seq. Fost. 290.
1 Hale, 466. In R. v. Taylor, 2 Lew.
215, Taunton, J., said : ' Manslaughter
is homicide, not under the influence of
malice, but where the blood is heated by
provocation, and before it has time to
cool.' This definition does not cover
homicide by neglect or want of skill,
or in doing an unlawful act.

(z) Post, p. 807.

(a) R. V. Dyson [1908], 2 K. B. 454-456
(C. 0. A.).

(6) Vide post, 818.

(c) Or not less than three years, or to
imprisonment with or without hard labour
for not over two years. 54 & 55 Vict.
0. 69, s. 1 ; ante, pp. 211, 212. The words
omitted from s. 5 were repealed in 1892
(S. L. R.).

{d) Ante, p. 231.

(e) 1 Hale, 438, 439, and see ante,
pp. 108, 114 et seq. as to what will be a
presence aiding and abetting.

(/) 1 Hale, 437. 1 Hawk. c. 30, s. 2.

(g) 1 Hale, 450. This is clearly
Bibithe's case. 4 Co. Rep. 43 6. Moore
(K.B.) 461. See the observations on it.
Greaves' Cr. Cons. Acts, 43 (2nd ed,).

780 Of Homicide. tfiooK IX.

are cases of manslaughter where there may be accessories Qi). Thus a
man may be such an accessory by purchasing poison for a pregnant
woman to take in order to procure abortion, and which she takes and
thereby causes her death {%). Where two men fought with fists and the
one was killed, and before fighting, by agreement, they each deposited a
pound with the defendant, upon the terms that after the fight he was to
hand over the two pounds to the winner, the defendant, who was not
present at the fight, and took no further part in the circumstances
attending it than to hold the money and to hand it over afterwards to the
survivor, was held not liable to be convicted of being accessory before the
fact to the manslaughter (/). There may be accessories after the fact
in manslaughter {h).

Provocation and Mutual Combat. — Whenever death ensues from
the sudden transport of passion, or heat of blood upon a reasonable
provocation, and without malice, the offence will be manslaughter (Z).
The person sheltering himself under this plea of provocation must make
out the circumstances of alleviation to the satisfaction of the Court and
jury, unless they arise out of the evidence produced against him ; as
the presumption of law deems all homicide to be malicious, I'.ntil the
contrary is proved. The decisions as to the line to be drawn between
murder and manslaughter in cases of killing in mutual combat have been
already discussed ante, p. 710.

Resistance to Officers of Justice, &e. — It has been before mentioned
as a general rule, that where persons who have authority to arrest
or imprison, and use the proper means for that purpose, are resisted in
so doing, and killed, it will be murder in all who take part in such
resistance (m). This protection of the law extends only to persons who
have proper authority and do use that authority in a proper manner {n) ;
wherefore questions of nicety and difiiculty have frequently arisen upon
the points of authority, legality of process, notice, and regularity of
proceeding. The consequence of defects in any of these particulars, is in
general that the offence of killing the person resisted is extenuated to
manslaughter (o).

Sect. II. — Killing in the Prosecution of some Unlawful
OR Wanton Purpose.

Where death is caused by an act unlawful in itself, done heedlessly
or incautiously, but without deliberation or mischievous intention (p),
the killing is manslaughter [q). Where a blow aimed at one person lights
upon another and kills him, the inquiry will be whether, if the blow had
killed the person against whom it was aimed, the offence would have

(%) R. V. Gaylor, Dears. & B. 288 ; vide c. 4 (see 2 Hawk. c. 29 o. 24)

ante, pp. 114 et seq, (;) i Hale, 466. 1 Hawk. c. 30. Fost.

*) I""i- 290. 4 BI. Com. 191. 1 East, P. C. 232.

{)) R. V. Taylor, L. R. 2 C. C. R. 147. (m) Ante, p. 721.

(k) 1 Hale, 450. 1 East, P. C. 353. R. (n) Fost. 319, and ante, p. 763.

V. Greenaore, 8 C. & P. 35, Tindal, C.J., (o) Ante, p. 656.

Coleridge and Coltman, JJ. 24 & 25 Vict. (p) As to deliberate intention, vide ante,

c. 94, s. 3 ; 24 & 25 Vict. o. 100, s. 67. pp. 655 et seq.

Ante, p. 126. There were doubts on the (q) Fost. 261.
subject before the Act 1 Anne, st. 2,

CHAP. I.] Manslaughter hy Unlawful or Wanton Acts. 781

been murder or manslaughter. For if a blow, intended against A,, and
lighting on B., arose from a sudden transport of passion, which, in case
A. had died by it, would have reduced the offence to manslaughter, the
fact will admit of the same alleviation, if it shall have caused the death
of B. (r).

There are so many acts so heedless and incautious as necessarily to
be deemed unlawful and wanton, though there may not be any express
intent to do mischief : and the party committing them, and causing
death by such conduct, will be guilty of manslaughter. As if a person,
who is breaking an unruly horse, rides him amongst a crowd of people,
and death ensues from the viciousness of the animal, and it appears
clearly to have been done heedlessly and incautiously only, and not with
an intent to do mischief, the crime will be manslaughter (s). And if a
man knowing that people are passing along the streets, throws a stone or
shoots an arrow over a house or wall, and a person be thereby killed, this
will be manslaughter, though there was no intention to do hurt to any-
one, because the act itself was unlawful {t). So where a gentleman came
to town in a chaise, and, before he got out of it, fired his pistols in the
street, which, by accident, killed a woman, it was ruled manslaughter ;
for the act was likely to breed danger, and was manifestly improper (u).

A party who causes the death of a child by giving it spirituous hquors,
in a quantity quite unfit for its tender age, has been held guilty of
manslaughter {v).

On an indictment for manslaughter it appeared that the deceased was
in possession of the goods of one of the prisoners under a warrant from
the sheriff, and the three prisoners plied him with drink, themselves
drinking freely also, and when he was very drunk, put him into a cab-
riolet, and caused him to be driven about the streets, and about two hours
after he was put in the cabriolet he was found dead. Parke, B., after
directing the jury to dismiss from their consideration that part of the
indictment which alleged that the prisoners knew that the quantity of
liquor taken was likely to cause death, of which there did not appear to
be any evidence, and which, if proved, would make the offence approach
to murder, told the jury that if they were of opinion that the prisoners
put the deceased in the cabriolet, then the questions would be : first,
whether they or any of them were guilty of administering or procuring
the deceased to take large quantities of liquor for an unlawful purpose ;
or, whether, when he had taken it, they put him into the cabriolet for an
unlawful purpose. If they thought that the three prisoners, or one of
them, made him excessively drunk, to enable the prisoner, whose goods
were seized, to prevent the completion of the execution ; or if they were
satisfied that the object of the prisoners, or any of them, was otherwise
unlawful, and that the death of the deceased was caused in carrying their
unlawful object into effect, they must be found guilty. The simple fact

(r) Tost. 262. (») R- "• Burton, 1 Str. 481.

(s) 1 East, P. 0. 231. (") K.t).Martiii,3 C. & P.211. Itisnow

(i) 1 Hawk. 0. 31, s. 68. But it is said an offence to give intoxicating liquor to a

that in such a case if the rider had intended child under five except on the order of a

to divert himself with the fright of the fully qualified medical practitioner or

crowd the offence would be murder. nurse, or in case of sickness or other urgent

1 Hale, 475. I Hawk. c. 29, s. 9. cause (8 Edw. VII. c. 67, s. 119).

782 Of Homicide. [book ix.

of persons getting together to drink, or one pressing another to do so, was
not an unlawful act ; or, if death ensued, an ofEence that could be con-
strued into manslaughter. Upon the first question stated, it would be
essential to make out that the prisoners administered the liquor with
the intention of making the deceased drunk, and then getting him out of
the house ; and if that were doubtful, still if, when he was drunk, they
removed him into the cabriolet with the intention of preventing his
returning, and death was the result of such removal, the act was unlawful,
and the case would be a case of manslaughter. If, however, they all got
drunk together, and afterwards he was put into the cabriolet with an
intention that he should take a drive only, that was not an unlawful
object, such as had been described, and the prisoners would be entitled
to an acquittal. And to a question put by the jury, the learned baron
answered, that if the prisoners, when the deceased was drunk, drove him
about in the cab, in order to keep him out of possession, and by so doing
accelerated his death, it would be manslaughter (w).

If death ensues from an act which is a mere trespass the ofEence will
be only manslaughter, not murder. Where a carman was in the front
part of a cart loading it with sacks of potatoes, and a boy pulled the trap-
stick out of the front of the cart, but not with intent to do the man any
harm, as he had seen it done several times before by others ; and in con-
sequence of the trapstick having been taken out, the cart tilted up, and
the deceased was thrown out on his back on the stones, and the potatoes
were shot out of the sacks, and fell on and covered him over, and he died
in consequence of the injuries then received, it was held that the boy was
guilty of manslaughter {x). Where an indictment for manslaughter
alleged that the prisoners in and upon one L. H. did make an assault,
and that L. H. then lying in a certain cart containing divers bags of nails
of great weight, the prisoners did with their hands force up the shafts of
the said cart, and throw down the body of the said cart in which L. H.
was so as aforesaid lying, and him the said L. H. by such forcing up of
the shafts and throwing down of the body of the said cart as aforesaid,
did cast and throw upon the ground under the said bags of nails ; by
means whereof the said bags of nails were thrown and forced against over
and upon the breast of L. H., L. H. then being upon the ground, and the
said bags of nails then and there did press and lie upon the breast of
L. H., thereby giving, &c., Taunton, J., held that it was not necessary
to allege in the indictment that the prisoners knew the deceased to be
in the cart, as malice was not an ingredient in the crime {y).

On an indictment for manslaughter, the following statement of the
prisoner was proved : ' As I was going home about four o'clock this
afternoon I heard the report of a gun. Shortly afterwards I saw the
deceased with a gun, and I went to him to take his gun from him. We
had a scuffle together for about ten minutes, and there were blows ex-
changed on both sides ; the deceased struck me, and knocked me down
with his gun ; at the same time the gun went off, and shot the deceased.

(w) R. u. Packard, C. & M. 236. (y) R. v. Lear and Kempson, Stafford

{x) R. V. Sullivan, 7 C. & P. 641. Gur- Spring Assizes, 1832. MSS. 0. S. G.
ney, B., and Williams, J,

CHAP. I.] Manslaughter by Unlawful or Wanton Acts. 783

I was insensible for a short time, and when I came round found the de-
ceased was dead, and had the barrel of the gun in his hand.' The prisoner
was a gamekeeper of a gentleman who had permission by parol to shoot
over the land where this scufSe took place. It was contended that,
admitting that the prisoner had no right to take the gun away, and that
he was guilty of an assault in attempting to do so, the death was not
the result of that assault, but of the excess of violence of the deceased
himself. Lord Campbell, C.J., told the jury that the case was one of
manslaughter. The struggle between the prisoner and the deceased was
to be considered as one continuous illegal act on the part of the prisoner,
and death resulting from that act (2;).

The defendant kept a gun loaded with printing types, in consequence
of several robberies having been committed in the neighbourhood, and
sent a mulatto girl, his servant, of the age of about thirteen, for the gun,
desiring the person in whose house he lodged to take the priming out.
This he did, and told the girl so, and delivered the gun to her, and she put
it down in the kitchen, resting on the butt, and soon afterwards took it
up again, and presented it, in play, at the plaintiff's son, a young boy,
saying she would shoot him, and drew the trigger, and the gun went off,
and wounded the boy. It was held that the defendant was liable to
an action for the injury. Ellenborough, C. J., said : ' The defendant might
and ought to have gone farther : it was incumbent on him, who, by
charging the gun, had made it capable of doing mischief, to render it safe
and innoxious. This might have been done by the discharge or drawing
of the contents ; and though it was the defendant's intention to prevent all
mischief, and he expected that this would be effectuated by taking out the
priming, the event has unfortunately proved that the order to Leman
was not sufficient ; consequently, as by this want of care the instru-
ment was left in a state capable of doing mischief, the law will hold the

(z) R. V. Wesley, 1 F. & F. 528. ' Lord
Campbell refused to reserve the point ;
and yet it seems well deserving of better
consideration. If the prisoner had died
from the excess of violence inflicted by
the deceased, it cannot be doubted that
the deceased would have been guilty of
manslaughter, and it is not a little startling
to hold that that excess of violence which
caused the gun to explode is to make the
prisoner guilty of manslaughter. Suppose
the deceased had pulled the trigger in-
tending to shoot the prisoner, and in the
struggle he had shot himself instead, it
would be starthng to hold the prisoner
guilty of manslaughter. The reason why
an excess of violence is punished is, that
it is not in point, of law attributable to the
assault committed, but to the wrongful
act of the party assaulted, and to hold the
party assaulting guilty of the result of an
excess of violence is to hold him guilty of
the consequence of an act, of which the
law not only holds him not to be guilty, but
holds the other party to be guilty, or, to put
it in still simpler terms, to hold him re-
sponsible for an a<:t which the law holds not

to be his act at all, but to be wholly the act
of another person. '^ — C. S. G. In R. v.
Archer (1 F. & F. 351) the deceased
had deposited a gun with A. to secure
a loan of money, and in A.'s absence
called at his house and took away
the gun without repaying the money.
A. went to the deceased and demanded
the gun back, and on his refusal to give
it up began to wrestle with him. The
deceased said that the gun w£is loaded ;
the prisoner, however, persisted in his
attempt to take it away, and after a violent
struggle succeeded in doing so ; but,
falling on the ground as he was in the act
of wrenching the gun away, the gun went
off accidentally, and killed the deceased.
Campbell, C. J., told the jury that, though
the prisoner had a right to the possession
of the gun, to take it away from the
deceased by force was unlawful ; and that
as the discharge of the gun was this result
of the unlawful act, it was their duty to
find the prisoner guilty of manslaughter.
The decision in Blades v. Higgs, 11 H.
L. C. 621, 10 C. B. (N. S.) 713, seems to
render this ruling of no authority.

784

Of Homicide.

[BOOK IX.

defendant responsible' {a). It has been suggested in former editions
that this ruling would have justified the conviction of the defendant
for manslaughter if death had ensued : but it is very doubtful whether
it can safely be pressed so far.

Where a person fires at another a firearm, knowing it to be loaded,
and therefore intending either to kill or to do grievous bodily harm, if
death ensues the crime is murder ; and if he does not know that it is
loaded, and has taken no pains to ascertain, the crime is manslaughter (6).

A man found a pistol in the street, which he had reason to believe was
not loaded, having tried it with the rammer : he carried it home, and
shewed it to his wife ; and she standing before him, he puUed up the cock,
and touched the trigger ; and the pistol went off and killed the woman.
This was ruled manslaughter (c). But the legality of the decision has
been doubted, on the ground that the man examined the pistol in the
common way, and used the ordinary caution deemed to be effectual in
similar cases [d). And Foster, J., after stating his reasons for disapprov-
ing of the judgment, says, that he had been the longer upon the case,
because accidents of this lamentable kind may be the lot of the wisest
and best of mankind, and most commonly fall amongst the nearest
friends and relations ; and then proceeds to state a case of a similar kind,
in which the trial was had before himself. On a Sunday morning a man
and his wife went to take dinner at the house of a friend. He carried his
gun with him, but before dinner he discharged it, and set it up in a private
place in his friend's house. After dinner he went to church ; and in the
evening, returned home with his wife, bringing his gun with him. He
taking it up, touched the trigger ; and the gun went off and killed his
wife. It came out in evidence, that, while the man -was at church,
another person took the gun, charged it, and went after some game ;
and returned it, loaded, to the place whence he took it, and the defendant,
who was ignorant of all that had passed, found it, to all appearance
as he had left it. ' I did not inquire,' says Foster, J., ' whether
the poor man had examined the gun before he had carried it home ;
but being of opinion, upon the whole evidence, that he had reasonable
grounds to believe that it was not loaded, I directed the jury that,
if they were of the same opinion, they should acquit him : and he was
acquitted ' (e).

An indictment charged that there was a scaffolding in a certain coal
mine, and that the prisoners, by throwing large stones down the mine.

(a) Dixon v. Bell, 5 M. & S. 198. See
1 Eeven on Negligence (3rd ed.), p. 97.

(6) R. V. Campbell, 11 Cox, 323. R. v.
Jones, 12 Cox, 628.

(d) Fost. 264, where it is said, that per-
haps the rammer, which the man had not
tried before, was too short, and deceived
him. But, qu., whether the ordinary and
proper precaution would not have been to
have examined the pan, which in all pro-
bability must have been primed. The
rammer of a pistol, or gun, ia so frequently
too short, from having been accidentally

broken, that it would be very incautious
in a person previously unacquainted with
the stale of the instrument to rely upon
such proof as he could receive from the
rammer, unless it were passed so smartly
down the barrel as clearly to give the
sound of the metal at the bottom. How-
ever, there is a qu. to the case in the
margin of the report, and it appears that
the learned Editor (Holt, C.J.) was not
satisfied with the judgment ; and that it
is one of the points which, in the Preface,
he recommends for further consideration.
(e) Foster, Cr. L. 265.

CHAP. I.] Manslaughter by Unlawful or Wanton Acts. 785

broke the scaffolding ; and that in consequence of the scaffolding being so
broken, a corf, in which the deceased was descending the mine, struck
against a beam, on which the scaffolding had been supported, and by
such striking the corf was overturned, and the deceased precipitated into
the mine and killed. It was proved that scaffolding was usually found
in mines in the neighbourhood, for the purpose of supporting the corves,
and enabling the workmen to get out and work the mines ; that the stones
were of a size and weight sufficient to knock away the scaffolding, and that
if the beam only was left, the probable consequence would be that the corf
striking against it would upset, and occasion death or injury. Tindal,
C.J., said : ' If death ensues as the consequence of a wrongful act, an act
which the party who commits it can neither justify nor excuse, it is not
accidental death but manslaughter. If the wrongful act was done under
circumstances which shew an intent to kill, or do any serious injury in the
particular case, or any general malice, the offence becomes that of murder.
In the present instance, the act was one of mere wantonness and sport,
but still the act was wrongful — it was a trespass. The only question
therefore is, whether the death of the party is to be fairly and reasonably
considered as a consequence of such wrongful act ; if it followed from such
wrongful act, as an effect from a cause, the offence is manslaughter ;
if it is altogether unconnected with it, it is accidental death ' (ee).

But where a person wrongfully and wantonly threw a large box from
a pier into the sea and accidentally struck and killed a man who was
swimming under the pier, Field, J., after consulting Mathew, J., said
that the question of negligence must be left to the jury and not the
mere question whether the death was caused by the wrongful act of the
prisoner. The mere fact that the prisoner had committed a civil wrong
ought not to be used a.s an incident which was a necessary step in a
criminal case (/).

Unlawful Games. — Where sports are unlawful in themselves, or pro-
ductive of danger, riot, or disorder, so as to endanger the peace, and
death ensue in the pursuit of them, the party killing is guilty of man-
slaughter (gr). Prize-fighting, public boxing matches Qi) or any other sports
of a similar kind, which are exhibited for lucre, and tend to encourage
idleness by drawing together a number of disorderly people, have been
considered unlawful (^). For in these cases the intention of the parties
is not innocent in itself, each being careless of what hurt may be given,
provided that the promised reward or applause be obtained ; and meetings
of this kind have also a strong tendency to cause a breach of the
peace (/). Therefore, where the prisoner had killed his opponent in a
boxing match, it was held that he was guilty of manslaughter ; though
he had been challenged to fight by his adversary for a public trial of skill
in boxing, and was also urged to engage by taunts ; and the occasion
was sudden {k).

(ee) R. V. Fenton, 1 Lew. 179, Tindal, v. Young, 10 Cox, 371.
CJ (») Fost. 260.

(/) E. V. Franklin, 15 Cox, 163. (?) 1 Bast, P. C. 270.

(7) Fost. 259, 260. 1 East, P. C. 268. (h) Ward's case, 0. B. 1789, cor. Ash-

(h) But not sparring matches with hurst, J. 1 East, P. C. 270.
proper gloves and fairly conducted. R.

VOL. I. 3 E

786

Of Homicide.

[BOOK IX.

Prize-fights are altogether illegal ; as illegal aS duels with deadly
weapons, and it is not material which party strikes the first blow [1)-

In E. V, Coney (m), two men fought with each other in a ring formed by
ropes supported by posts and in the presence of a large crowd. Amongst
the crowd were the prisonersj who were not proved to have taken any
active part in the management of the fight, ot to have said or done any^
thing. They were tried and convicted of aiding and abetting an assault.
Upon a case reserved the conviction was quashed by eight judges against
three, the majority holding that mere voluntary presence at a fight does
not as a matter of law necessarily render persons so present guilty of aiding
and abetting an assault, although the mere presence unexplained may,
it would seem, afford some evidence for the consideration of a jury.

In E. V. Murphy (w), at a fight at which many were assembled the ring
was several times broken by petsons carrying sticks, which they used
with great violence, and the deceased died of blows then received ;
Littledale, J., directed the jury ; ' You ought to consider whether the
deceased came by his death in consequence of blows he received in the
fight itself ; for if he came by his death by any means not connected with
the fight itself, that is, if his death was caused by the mob coming in with
bludgeons, and taking the matter as it were out of the hands of the com-
batants, then persons merely present encouraging the fight would not be
answerable, unless they are connected in some way with that particular
violence. If the death occutred from the fight itself, all persons encoura-
ging it by their presence are guilty of manslaughter ; but if the death
ensued from violence uftconnected with the fight itself, that is, by blows
given not by the othei* combatant in the course of the fight, but by persons
breaking in the ring and striking with their sticks, those who were merely
present are not, by being present, guilty of manslaughter.^

Killing another by throwing stones at another wantonly in play, being
a dailgeious sport without the least appeatance of any good intent, or
doing any other Such idle action as cannot but endanger the bodily hurt
of some one or other, wiU be manslaughter (o).

Lawful Sports.— Such sports and exercises as tend to give strength,
activity, and skill in the use of atms, and ate entered into as private
tecreations amongst friends without any intention to cause bodily harm.
Such as playing at cudgels, or foils, or sparring with gloves (p), wTestling
by consent, or football {q), are deemed lawful ; and if either party happens

. (I) R. V. Coney,8 Q.B.D. 535, approving
K. V. Perkins, 4 C. & P. 537, Patteson, J.
B. V. Lewis, 1 C. & K. 419, Coleridge, J.
R. V. Billingham, 2 C. & P. 234, BUrroUgh,
J. See R. V. Hargrave, 5 C. & P. 170,
where Patteson, J., ruled that persons
firesent at » prize-fight were not such
aocomplices as to need corroboration.

(m) 8 Q.B.D. 534, per Denman, J.,
Huddlestone, B., Manisty, Hawkins,
Lopea, Stephen, Cave, and North, JJ.
(Coleridge, C.J., Pollock, B., and Mathew,
J.,, diss.). This decision appears to over-
rule R. V. Murphy, 6 C. & P. 103; R.
V. Perkins, 4 G; & P. 537 ; and R. v.
Billingham, 2 C. & P. 234, if and so far

as they decided that mere presence at
a prize-fight is encouragement. Cf. R.
V. Young, 8 C. & P. 644, where mere pre-
sence at a duel was held not enough to
warrant conviction for aiding and abetting
in the murder of one of the combatants.

{n) 6 C. & P. 103.

(o) 1 Hawk. 0. 29, s. 6. Cock-throwing
at Shrovetide was held unlawful, and a
person who in throwing at a cock missed
his aim and lulled a child was held guilty
of manslaughter by Poster, J. Post 261

{p) R. V. Young, 10 Cox, 371.

(?) R. V. Bradshaw, 14 Cox, 83. R .,
Moore, 14 T. L. R. 229.

cfiAf. 1.] Manslaughter hy Unlawful or Wanton Acts. 787

accidentally to be killed in such sports, it is excusable homicide by
misadventure (r).

Though it cannot be said that such sports are altogether free from
danger, yet they are very rarely attended with fatal consequences, and
each party has friendly warning to be on his guard. Proper caution and
fair play should, however, be observed, and illegal violence avoided, and,
though the weapons used be not of a deadly nature, yet, if they may breed
danger, there should be due warning given, that each party may start
upon equal terms. For if two are engaged to play at cudgels,, and the
one make a blow at the other, likely to hurt, before he is upon his guard,
and without warning, from whence death ensues, the want of due and
friendly caution will make such act amount to manslaughter, but not
murder, the intent not being malicious (s).

In R. V. Young {t) seven men were indicted for manslaughter. They had
been sparring with gloves on, and the deceased was with them. After
several rounds the deceased fell and struck his head against a post, whilst he
was sparring with the prisoner. The men were all friendly, but as the
deceased and the prisoner came up to the last round they were ' aU in a
stumble together.' The medical testimony was to the effect that sparring
might be dangerous, but that death would be unlikely to result from such
blows as had been given. The danger would be where a person was able
to strike a straight blow, but the danger would be lessened as the com-
batants got weakened. Bramwell, B., said, the difficulty was to see what
there was unlawful in this matter. It took place in a private room ; there
was no breach of the peace. No doubt if death ensued from a fight,
independently of its taking place for money, it would be manslaughter ;
because a fight was a dangerous thing and likely to kill ; but the medical
witness here had stated, that this sparring with the gloves was not dan-
gerous, and not a likely thing to kiU. After consulting Byles, J., Bram-
well, B., said, that he retained the opinion he had previously expressed.
It had, however, occurred to him that supposing there was no danger in
the original encounter, the men fought on until they were in such a state
of exhaustion that it was probable they would fall, and fall dangerously,
and if death ensued from that, it might amount to manslaughter, and he
proposed, therefore, so to leave the case to the jury and reserve the point
if necessary. The prisoners were acquitted.

In R. V. Orton (m) it was held upon a case reserved that if persons meet
to fight intending to continue till they give in from injury or exhaustion,
the fight is unlawful whether gloves are or are not used.

On a trial for manslaughter it appeared that the prisoner came into
a shop and puUed a young lad by the hair off a cask where he was sitting,
and put his arm round his neck and spun him round, and they came
together out of the shop, and the prisoner kept spinning him round, and
the lad broke away from him, and in consequence, and at the moment
of his so doing, the prisoner, being intoxicated, reeled into the road, and
against the deceased who was passing and knocked her down, and she

(r) Post. 259, 260. 1 East, P. C. 268. {s) 1 East, P. C. 269.

A different view seems to have been held (t) 10 Cox, 371.

by Hale, 1 P. C, 472, but his view is con- (u) 14 Cox, 226 (C. C. R.).
tested by Foster (Cr. L. 260).

788

Of Homicide.

[BOOK IX.

died shortly afterwards. The lad said he did not resist the prisoner — he
thought the prisoner was only playing with him, and was sure that it
was intended as a joke throughout. Erie, J., told the jury ; ' Where the
death of one person is caused by the act of another, while the latter is in
pursuit of any unlawful object, the person so killing is guilty of man-
slaughter, although he had no intention whatever of injiiring him who
was the victim of his conduct. Here, however, there was nothing un-
lawful in what the prisoner did to this lad, and which led to the death of
the woman. Had this treatment of the boy been against his will, the
prisoner would have been committing an assault — an unlawful act — which
would have rendered him amenable for any consequences resulting from
it ; but as everything that was done was with the boy's consent, there
was no assault, and consequently no illegality. It is in the eye of the
law an accident, and nothing more ' (v).

Ordinarily the weapons made use of upon such occasions are not
deadly in their nature. In some sports the instruments used are of a
deadly nature ; yet, if they are not directed by the persons using them
against each other, and therefore no danger is reasonably to be appre-
hended, the killing which may casually ensue will be only homicide by
misadventure. Such will be the case, therefore, where persons shoot at
game, or butts, or any other lawful object, and a bystander is killed (w).

Even in lawful sports, if the weapons used are of an improper and
deadly nature, the party killing will be guilty of manslaughter. Sir John
Chichester in playing with his manservant made a pass at the servant
with the sword in the scabbard, and the servant parried it with a bed-
staff, but in so doing struck off the chape of the scabbard, whereby the
end of the Sword came out of the scabbard ; and the thrust not being
effectually broken, the servant was killed by the point of the sword (a;).
This was adjudged manslaughter : and Foster, J., thinks, in conformity
with Lord Hale, that it was rightly so adjudged, on the ground that there
was evidently a want of common caution in making use of a deadly weapon
in so violent an exercise, where it was highly probable that the chape
might be beaten off, which would necessarily expose the servant to great
bodily harm (y).

The deceased met with his death in the course of a game of football
played according to the Association rules. The deceased was kicking the
ball when the prisoner in charging him struck him with his knee in the
stomach, inflicting injuries which proved fatal. Bramwell, L.J., told

(v) R. V. Bruoe, 2 Cox, 262.

(to) ] Hale, 38, 472, 475. 1 Hawk. o.
29, b. 6. 1 East, P. C. 269. Shooting at
game without a licence, or under the old
law without a qualification, is not 3o un-
lawful as to render accidental killing man-
slaughter. 1 Hale, 475. E'ost.259. Where
one of two poachers accidentally kills
another, it has been ruled manslaughter.
R. V. Holt, Lancaster Assizes, 25 Jan. 1907,
Sutton, J., 42 L. J. (Newsp. ) 67. Sed qucere.

{x) Sir John Chichester's case, Allen
12 : Keilw. 108 ; 72 E. R. 723 ; 1 Hale,
472, 473.

(ij) 1 Hale, 473. Fost. 260. 1 East,
P. C. 269. But see in Hale, 473, the
following note : ' This seems a very
hard case ; and, indeed the foundation of
it fails ; for the pushing with a sword in
the scabbard, by consent, seems not to be
an unlawful act ; for it is not a dangerous
weapon likely to occasion death, nor did it
so in this case, but by an unforeseen acci-
dent, and therein differs from the case of
jousting, or prize-fighting, wherein such
weapons are made use of as are fitted and
likely to give mortal wounds.'

CHAP. I.] Lawful Acts Improperly Performed

789

the jury : ' If a man is playing according to the rules and practice of the
game and not going beyond, it may be reasonable to infer that he is not
actuated by any malicious motive or intention, and that he is not acting
in a manner which he knows will be likely to be productive of death or
injury. But if the prisoner intended to cause serious hurt to the deceased,
or if he knew that in charging as he did he might produce serious injury,
and was indifferent and reckless as to whether he did so or not, then the
act would be unlawful ' (2). The jury acquitted the prisoner.

Shooting at deer in another's park, without leave, is an unlawful act,
though done in sport, and without any felonious intent ; and therefore
if a bystander is killed by the shot, such killing will be manslaughter (a).

In one case, where rioters, having forcibly gained possession of a house,
afterwards killed a partisan of the person whom they had ejected, as he,
in company with a number of others, was endeavouring in the night
forcibly to regain the possession, and to fire the house, they were adjudged
guilty only of manslaughter (6). The ratio decidendi seems to have been
that the person slain was so much in fault himself (c). But the decision
is an exception from the general rule already stated as to the liability of
rioters in case of homicide {d).

Sect. III. — Killing in consequence op some Lawful Act being

CRIMINALLY OE IMPROPERLY PERFORMED, OR OF SOME ACT
PERFORMED WITHOUT LaWFUL AUTHORITY.

An act, not unlawful in itself, may be performed in a manner so
criminal and improper, or by an authority so defective, as to make the
party performing it, and in the prosecution of his purpose causing the
death of another person, guilty of murder (e). And as the circumstances
of the case may vary, the party so kUling another may be guilty only of
manslaughter (/).

(z) R. V. Bradshaw, 14 Cox, 83.
(a) 1 Hale, 475.

(6) Drayton Basset case, Fitzh. (ed.
Crampton, 1606), f. 26. 1 Hale, 440.

(d) Ante, p. 759.

(e) Ante, pp. 763 et seq. ; cf . E. v. Moore,
14 T. L. R. 229, Hawkins, J.

(/) In R. V. Tranter (as reported 1 Str.
449), L., being arrested for a small debt,
prevailed on one of the officers to go with
him to his lodgings, while the other was
sent to fetch the attorney's bill, in order,
as Ii. pretended, to have the debt and
costs paid. Words arose at the lodgings
about civiUty money, which L. refused to
give, and he went upstairs, pretending to
fetch money for the payment of the debt
and costs, leaving the officer below. He
soon returned with a brace of loaded
pistols in his bosom, which, at the impor-
tunity of his servant, he laid down on the
table, saying, ' he did not intend to hurt
the officers, but he would not be ill-used.'
The officer who had been sent for the

attorney's bill soon returned to his com-
panion at the lodgings ; and, words of
anger arising, L. struck one of the officers
on the face with a walking cane, and drew
a little blood. Whereupon both of them
fell upon him ; one stabbed him in nine
places, he all the while on the groimd
begging for mercy, and unable to resist
them ; and one of them fired one of the
pistols at him while on the ground, and
gave him his death wound. This is said
to have been held manslaughter, by reason
of the first assault with the cane. This
decision is criticised as extraordinary by
Foster (293, 294), who mentions additional
circumstances as reported 16 St. Tr. 1.
1. L. had a sword by his side, which, after
the affray was over, was found drawn and
broken. 2. When L. laid the pistols on
the table, he declared that he brought
them down because he would not be forced
out of his lodgings. 3. He threatened the
officers several times. 4. One of the
officers appeared to have been wounded
in the hand by a pistol shot (for both

790 Of Homicide. [book IX.

Where an inquisition alleged that the defendants were trustees under
an Act of Parliament, and that it was their duty to contract for the
repair of a road, and also to repair the road, and that they did
feloniously neglect to contract for the reparation of the said road, and
did feloniously neglect to repair the same, and that W. B. being riding
in a barrow along the said road, the defendants by their neglect to
contract for the reparation of the said road, and by their neglect to
repair the same, did cause one wheel of the said barrow to fall into
a large hole in the said road, and the said W. B. to be thereby thrown
with great violence from the said barrow upon the ground, whereby
he was killed ; it was held that the inquisition was bad : not only
must the neglect, to make a party guilty of it liable to the charge of felony,
be personal, but the death must be the immediate result of that personal
neglect, and here the death was not the direct consequence of the neglect
charged {g).

Negligence in Business. — Upon an indictment for the manslaughter
of a child, it appeared that the child being ill, the mother sent to a
chemist for a pennyworth of paregoric ; the chemist's apprentice delivered
a phial, with a paregoric label on it, but with laudanum in it ; and the
mother, supposing it to be paregoric, gave the child six or seven drops,
which killed it. The laudanum bottle and the paregoric bottle stood side
by side. Bayley, J., told the jury : ' If you think there was negligence
on the part of the prisoner, you will find him guilty ; if not, you must
acquit him ' (Ji).

The prisoner was indicted for manslaughter, in having, by negligence
in the manner of slinging a cask, caused the same to fall and kiU two
females, who were passing along the causeway. It appeared that there
were three modes of slinging casks customary in Liverpool : one by slings
passed round each end of the cask ; a second by can hooks ; and a third
which the prisoner employed, by a single rope round the centre of
the cask. The cask was hoisted up to the fourth storey of a warehouse,
and on being pulled endways towards the door, it slipped from the rope
as soon as it touched the floor of the room. Parke, J., told the jury :
' The double slings are undoubtedly the safest mode ; but, if you think
that the mode which the prisoner adopted was reasonably sufficient,
you cannot convict him ' {i).

pistols were discharged in the affray), and from his lodgings, which it would have

slightly wounded on the wrist by some been their duty to have done, if the debt

sharp-pomted weapon, and the other was had not been paid or bail given, he declared

slightly wounded m the hand by a, like it would be no more than manslaughter,

weapon. 5. The evidence touching L. (g) R. v. Pooock, 17 Q.B. 34; cf. R.t>.

begging for mercy was not that he was on Hilton, 2 Lew. 214, post, p 801 R jj

the ground begging for mercy, but that Qerk of Assizes of Oxford arouit [18971,

on the ground he held up his hands as if 1 Q. B. 370, where an inquisition for man-

he was begging for mercy. Upon these slaughter by neglect to fence a quarry

tacts Pratt, C J directed the jury, that was quashed as insufficiently setting out

It they beheved L. endeavoured to rescue the necessary particulars

himself, which he seemed to think was the (h) R. v. Tessymond, 1 Lew. 169, and

case, and which very probably was the vide ante, pp. 681 et seq. The directions

case. It would be justifiable homicide in of Bayley, J., as to criminal negligence in

t^e oihoers. And as L. gave the first this case are criticised in Seven on NegU-

blow, accompanied with menaces to the gence {3rd ed.). Vol. i. p. 7.

officers, and the circumstance of producing (i) R. v. Rigmaidon, 1 Lew. 180.
loaded pistols to prevent their taking him

CHAP. I,] Lawful Acts Improperly Performed. 791

The. prisoner, who was an ironfounder, was employed to make twelve
cannon, Four of them were sent home and tried, and one of them burst
under, the touch-hole, and was sent back to the prisoner, with orders to
have it melted up. The prisoner returned it nailed down to a carriage,
and there was some lead in it, which must have been put there to stop up
the part which had burst, as it matched the former aperture. The cannon
was loaded, with an ordinary charge, burst, and thereby killed the
deceased. It was held that the prisoner was guilty of manslaughter (/).

The prisoner had a firework shop in the Westminster Eoad, where he
had for some time carried on the business of selling fireworks. No fire-
works were made there except as follows : — First, the finishing the
smaller rockets, and making stars for them of combustible matter ;
secondly, making fireworks called serpents ; thirdly, making cases and
filling them with combustible matter, called red, blue, and green fires (h).
The fire was employed for filling coloured cases used to imitate revolving
lights in fireworks called wheels. These cases affixed were not used by
themselves, but in connection with those fireworks, to add to their effect.
The contents of the cases of fire made at the Westminster Eoad were
combustible, and the red fire would explode if struck hard. Five or six
pounds of fire were made every day in the house in Westminster Road,
and filled there in the back room into cases with a rammer and mallet by
persons employed for the purpose. At the time of the fire there was a
quantity of the red and blue fire in the house, in the room where it was
to be put into cases, in order to be used in the course of the business, and
a quantity of fireworks for the evening. The prisoner being out of the
house and not personally interfering, a fire broke out in the red and blue
fire, which communicated to the fireworks which were kept in the shop,
causing a rocket to cross the street and set fire to a house, in which the
deceased was consequently burnt to death. It was contended that the
fire was accidental in the sense of not being wilful or designed : that it
did not happen through any personal interference or negligence of the
prisoner ; that he was entitled to the benefit of any distinction between
its happening through negligence of his servants, or by pure accident
without any such negligence ; that the cases of red, &c., fire, were only
parts of the fireworks, and not within 9 & 10 Will. III. c. 7 ; that it did
not appear that it was by reason of making the fireworks that the mischief
happened, and that the death was not the direct and immediate result of
any wrong or omission on the prisoner's part. Willes, J., held that the
prisoner was guilty of a misdemeanor in doing an act with intent to do
what was forbidden by the statute, and that, as the fire was occasioned
by such misdemeanor, and without it would not have taken place, or
could not have been of such a character as to cause the death, a case was
made out ; but, upon a case reserved, the conviction was held wrong.
Cockburn, C.J., said, ' The keeping of the fireworks in the shop by the
prisoner caused the death only by the superaddition of the neghgence of
some one else. By the negligence of the prisoner's servants the fireworks
ignited, and the house in which the deceased was, was set on fire and

{j) B. V. Carr, 8 C. & P. 163, Bayley and particular attention of the judges was

Gurney, BB., and Patteson, j. directed,

(k) To this last part of the business th?

792 Of Homicide. [book ix.

death ensued. The keeping of the fireworks may be a nuisance ; and if,
from the unlawful act of the prisoner, death had ensued as a necessary
and immediate' consequence, the conviction might be upheld. The
keeping of the fireworks, however, did not alone cause the death : flus
that act of the prisoner there was the negligence of the prisoner's

servants' {I). ■, • t -m ^i.

H. was commandant of the forces at the garrison of Plymouth.
A target was placed in the Sound, under the general directions of the
Horse Guards, and the artillerymen were accustomed to practise by
firing at it with ball. One day while such practice was proceeding a
ball missed the target, and, striking the waves, ricochetted and hit a
boatman, who was taking a boat across the Sound in the lawful and proper
exercise of his vocation, and in a place where he might lawfully be.
Byles, J., after stating that the depositions were extremely long and
vague, so that he hardly knew in what shape the charge would be pre-
sented, is said to have told the grand jury that ' manslaughter was when
one man was killed by the culpable negUgence of another ' (m). A shght
act of negUgence was not sufficient— all men and women were neghgent
at some time ; it would depend on the degree of negligence. A slight
deviation from proper care and skill was not sufficient. By way of
illustration : suppose a man were to fire a gun in a field where he
saw no one, and as he fired another man suddenly raised his head
from a ditch ; he could not say that that man would be guilty of
manslaughter ; it would be held not to be culpable negligence (n).
But supposing a man were to fire down the High Street of Exeter
because he saw no one, and some one was suddenly to appear, and
he was killed, that would be culpable negligence in the man who
fired the gun. It would seem, and the results shewed it, that the

(I) R. V. Bennett, Bell, 1 : 28 L. J. dangerous one, and carried on unlawfully
M. C. 27. ' The case stated that the in a place where it is perilous to the public,
question of a nuisance, independent of " The law takes notice that occasional
the statute, was disposed of upon the carelessness may be reckoned upon, and
facts in favour of the prisoner. Not a forbids that to be done which, on the re-
single authority or case was referred to currence of carelessness, will, in all pro-
in the argument, or by the Court : and bability, prove destructive to life," R. v.
this case seems deserving of reconsidera- Lister, Dears. & B. 209: and therefore a
tion. The death would not have hap- person, who carries on such an employ-
pened except for the unlawful act of the ment in such a place, must be taken to
prisoner ; for, unless the combustibles had contemplate the carelessness of his ser-
been where they were, the death would vants as one of the natural consequences
not have occurred. If they had spon- of his carrying it on, and ought to be held
taneously ignited, or a stranger had acci- criminally responsible for it. Seetbeprin-
dentally ignited them by striking his ciples laid down in R. o. Lister.' C. S. G.
nailed boots on the floor, it cannot be 9 & 10 Will. III. c. 7 was repealed in
doubted that the prisoner would have 1860 by 23 & 24 Vict. o. 139, and the latter
been guilty of manslaughter ; but it is Act was repealed by the Explosives Act,
said that the negligence of the servant 1875 (38 & 39 Vict. c. 17), under which the
exonerates the master. It is submitted manufacture and storage of gunpowder
that, in point of law, it has no such effect. and other explosives is now regulated.
A master may be criminally responsible (m) This is only one form of man-
for the wilful acts of his servants, where slaughter; vide ante, p. 780.
they are done in the course of their em- (n) ' It is clear this would be no negli-
ployment and for his profit. R. v. Dixon, gence at all. The case as put is of a man
3 M. & S. 11 ; and d fortiori, he ought to lawfully shooting in a lawful place, where
\he held to be criminally responsible for he had no reason to suppose any other
the negligence of his servants in his em- person was.' C. S. G.
ployment, where that employment is a

CHAP. I.] Lawful Acts Imfroperly Performed. 793

boat was within the range of fiie ; but that was no defence. If the man
had not been killed, and had brought an action for damages, or if his wife
or family had brought an action, or if he had in any degree contributed to
the result an action could not be maintained. But in a criminal case it
was different. The Queen was the prosecutor, and could be guilty of no
negligence ; and if both the parties were negligent, the survivor was
guilty; and therefore it was no defence that the boat was in danger (o).
He could only speculate upon the negligence imputed in this case. First
he did not know that it would be said that it was an improper place
whether to fire from or to fire over. The gun was fired from one of the
batteries kept on purpose for practice. It was said that this battery was
too low ; but that was not the point of defence. Therefore, subject to
their better judgment, nothing could be imputed to the defendant as to the
place whence the gun was fired. Then as to the place over which it was
fired. Had the defendant the selection of it ? Then in using the place,
although an improper one, was he obeying military orders ? If so, he
would not be guilty (p). Common danger did not make the place im-
proper. He was a man performing a most important duty. Supposing,
therefore, that the defendant had been personally engaged in the firing :
if he thought that the place from which the gun was fired was not im-
proper, and that theplace to which the firing was directed was not improper,
assisted by additional precautions, which might be used, he would not be
responsible, because acting under the direction of superior authority.
It seemed that complaints had been made by a great many persons
residing in Plymouth and Devonport, and he must beg their attention
to the orders the defendant had given. The major-general would impress
upon the officers in command to see with the utmost diligence that
the range was free before the firing. Then there was a second order.
The major-general impresses upon the officers the necessity of seeing that
all was free, as he should hold them personally responsible. He had
hitherto presumed that the defendant had personally to do with the
firing ; and, if he had, he would not be guilty of manslaughter. But
the next question was, did he personally superintend the firing or did
he not ? They would see whether he did or not. Was he guilty of a
breach of duty in not personally superintending the firing ? He could
not see that he was. Again, it might be said, that if he issued orders
it was his duty to see that proper persons were appointed to keep a
proper look-out ; and if proper persons were nominated by him, it did
not appear whether they were properly disciplined, and it might be a
question whether there was any negligence in them. There were persons
with flags, but whether a proper look-out was kept might possibly be
doubtful ; whether means were taken for keeping a proper look-out they

(o) See post, p. 806.

(p) ' With all deference, this seems to be
an error. The commission of a felony can
never be excused by the order of any
superior, except in cases where the cir-
cumstances are siich as to warrant the act
that is done, as in case of rebellion, &c.
In. other cases the law acknowledges no
distinction between the soldier and the

private individual. See the charge of
Tindal, C.J., ante, p. 432. And the
command of the master is no defence to
the servant. See B. v. James, 8 C. & P.
131. If the military authorities gave
an order to practise at a particular place,
that order would only justify practising in
a careful and proper manner.' C. S, G.

794 Of Homicide, [book ix.

would have to determine. Under these circumstances it would be for
them to say whether negligence was brought home to the defendant (g),

A., B., and C. went into a field in proximity to certain roads "and
houses, taking with them a rifle which would be deadly at a mile, for the
purpose of practising firing with it. B. placed a board, which was handed
to him by A., in the presence of C, in a tree in the field as a target. AU
three fired shots directed at the board so placed, from a distance of about
100 yards. No precautions of any kind were taken to prevent danger
from such firing. One of the shots thus fired by one, though it was not
proved by which one of them, killed a boy in a tree in a garden near the
field at a spot distant 393 yards from the firing point. A., B., and C. were
all found guilty by a jury of manslaughter. On a case reserved it was held
that all three had been guilty of a breach of duty in firing at the spot in
question without taking proper precautions to prevent injury to others,
and were rightly convicted of manslaughter (r).

Vehicles, — It is the duty of every man who drives a vehicle on a
public highway to drive it with such care and caution as to prevent,
as far as is in his power, any injury to any person (s),

A foot passenger, though he may be infirm from disease, has a right
to walk on the carriage-way, although there be a footpath, and he is
entitled to the exercise of reasonable care on the part of persons driving
carriages along the carriage-way (<).

On an indictment for manslaughter, it appeared that the deceased
was walking along a road, in a state of intoxication : the prisoner was
driving a cart drawn by two horses, without reins ; the horses were
cantering, and the prisoner was sitting in front of the cart ; on seeing
the deceased, he called to him twice to get out of the way, but from the
state he was in, and the rapid pace of the horses, he could not do so, and
one of the cart wheels passed over him, and he was killed ; it was held,
that if a man drive a cart at an unusually rapid pace, whereby a person is
killed, though he calls repeatedly to such person to get out of the way, if,
from the rapidity of the driving, or from any other cause, the person
cannot get out of the way in time enough, but is killed, the driver is in law
guilty of manslaughter ; and that it is the duty of every man, who drives
any carriage, to drive it with such care and caution as to prevent, as far
as in his power, any accident or injury that may occur (m).

Upon an indictment for manslaughter, the evidence was, that the
prisoner, being employed to drive a cart, sat in the inside instead of
attending at the horse's head, and while he was sitting there, the cart went
over a child, who was gathering up flowers on the road. Bay ley, B.,
held that the prisoner, by being in the cart, instead of at the horse's head,
or by its side, was guilty of negligence ; and death having been caused by
such negligence, he was guilty of manslaughter {v).

iq) R. V. Hutchinson, 9 Cox, 555. 1 East, P. 0. 263, 264.
This report is manifestly imperfect, and, (t) Boss v. Litton, 5 0. & P. 407, Den-
as counsel are never present as counsel man, C.J. R. v. Grout, 6 C. & P. 629,
when the grand jury are charged, is not BoUand, B., Park, J.
likely to be the report of any barrister. («) R. v. Walker, 1 C. & P. 320, Gar-

(r) R. V. Salmon, 6 Q.B.D. 79 : 50 L. J. row, B.
M- ^- 25. (u) R. V. Knight, 1 Lew. 168. This rule

(a) Fost. 263. Anon., Old Bailey, 1704 : applies as much to bicycles, motor-cars.

CHAP. I,] Lawful Acts Improperly Performed. 795

Upon an indictment for manslaughter, it appeared that there were
two omnibuses, which were running in opposition to each other, galloping
along a road, and that the prisoner was driving that on which the deceased
sat, and the witnesses for the prosecution stated that the prisoner was
whipping his horses just before his omnibus upset. The defence was, that
the horses in the omnibus driven by the prisoner took fright and ran away.
Patteson, J., said ; ' The question is, whether you are satisfied that the
prisoner was driving in such a negligent manner that, by reason of his
gross negligence, he had lost the command of his horses ; and that depends
on whether the horses were unruly, or whether you believe that he had
been racing with the other omnibus, and had so urged his horses that he
could not stop them ; because, however he might be endeavouring to stop
them afterwards, if he had lost the command of them by his own act,
he would be answerable : for a man is not to say, " I will race along a road,
and when I am got beyond another carriage I will pull up." If the
prisoner did really race, and only when he had got past the other
omnibus endeavoured to pull up, he must be found guilty ; but if you
believe that he was run away with, without any act of his own, then he
is not guilty. The main questions are, were the two omnibuses racing ?
and was the prisoner driving as fast as he could, in order to get past the
other omnibus ? and had hei urged his horses to so rapid a pace, that he
could not control them ? If you are of that opinion you ought to convict
him ' (w).

S. and 0. were indicted for the manslaughter of D, The prisoners,

who were each driving a cart and horse, were seen two miles and a half

from the place where the deceased was killed. S. there paid the toll.

Both prisoners then appeared to be intoxicated. They were next seen at

a bridge, over which they passed at a gallop, the one cart close behind

the other. A person there told them to mind their driving ; this was

990 yards from the place where the deceased was killed. They were next

seen forty-seven yards beyond the place where the deceased was killed.

The carts were then going at a quick trot, one closely following the other.

At a turnpike-gate a quarter of a mile from that place S., who appeared

all along to have been driving the first cart, told the toll-gate keeper,

' We have driven over an old man ' ; and desired him to bring a light,

and look at the name on the cart, on which 0. pushed on his cart, and told

S. to hold his bother, and they then started off at a quick pace. They

were subsequently seen at two other places, at one of which S. said he had

sold his concern to 0. The surgeon stated that the deceased had a mark

on his body, which would correspond with the wheel of a cart, and also

several other bruises, and although he could not say that both carts had

passed over the body, it was possible that both might have done so. For

the prosecution it was contended, that it was perfectly immaterial in

point of law whether one or both carts had passed over the deceased.

The prisoners were in company, and had concurred in jointly driving

and mechanically propelled vehicles as to R. v. Davis, Old Bailey, Jan. 9, 1908,

vehicles drawn by animals or propelled Bigham, J., 43 Law Journal (Newsp.) 38,

by hand. For convictions of man- andR. «. Gylee, 1 Cr. App. E. 242: 73 J.P.

slaughter by furiously riding a bicycle see 72, and R. v. Dalloz, 1 Cr. App. R. 258.

R. v. Parker, 59 J. P. 793 ; R. v. Thirgood, (w) R. v. Timmins, 7 0. & P. 499, Patte

03 J. P. 442. As to motor- oars, see son, J.

796 Of Homicide. [book ix.

furiously along the road ; that was an unlawful act, and as both had
joined in it, each was responsible for the consequences, though they
might arise from the act of the other. For the prisoners it was urged
that the evidence only proved that one of the prisoners ran over the
deceased, and that the other was entitled to be acquitted. PoUock, C.B. :
' I think that is not so. I think the counsel for the Crown is right in his
law. If two persons are in this way inciting each other to do an unlawful
act, and one of them runs over a man, whether he be the first or the last,
he would be equally hable. The person who runs over the man would
be a principal in the first degree, and the other a principal in the second
degree.' And in summing up, Pollock, C.B., said : ' The prisoners are
charged with contributing to the death of the deceased by their negligence
and improper conduct ; and if they did so, it matters not whether he was
deaf, or drunk, or negligent, or in part contributed to his own death ; for in
this consists a great distinction between civil and criminal proceedings (a;).
If two coaches run against each other, and the drivers of both are to
blame, neither of them has any remedy for damages against the other.
But in the case of loss of life, the law takes a totally different view ; for
there each party is responsible for any blame that may ensue, however
large the share may be ; and so highly does the law value human life,
that it admits of no justification wherever life has been Tost, and the
carelessness or negligence of any one person has contributed to the death
of another person.' He then directed the jury on the other point in the
manner above mentioned («/).

On an indictment for manslaughter it appeared that the two prisoners
were in a state of partial intoxication, and drove a gig along a, road at a
very rapid pace, and met three men, and at that time they were driving
rapidly down a hill, and when the three men got to the top, which was
thickly shaded with trees, they found the deceased lying insensible in the
middle of the road, presenting all the appearance of having just been run
over by some vehicle, and he shortly afterwards died. He had been deaf
from his childhood, and had contracted an inveterate habit of walking
all hours in the middle of the road, though he had been frequently warned
of the probable consequences of doing so. It was contended that the
prisoners ought to be acquitted, as the deceased had contributed to his
own death. Eolfe, B., said: ' Whatever may have been the negligence
of the deceased I am clearly of opinion that the prisoners would not be
thereby exonerated from the consequences of their own illegal acts, which
would be traced to their negligent conduct, if any such existed. I am
of opinion, that if any one should drive so rapidly along a great thorough-
fare leading to a large town, as to be unable to avoid running over any
pedestrian who may happen to be in the middle of the road, it is that
degree of negligence in the conduct of a horse and gig which amounts to
an illegal act in the eye of the law, and, if death ensues from the injuries
then inflicted, the parties driving are guilty of manslaughter, even though
considerable blame may be attributed to the deceased. There is a very
wide distinction between a civil action for pecuniary compensation for
(.-i:) But Bee E. v. Birohall, 4 F. & F. (y) R. v. Swindall, 2 C. & K. 230. As

1087, R. V. Mastin, 6 C. & P. 396, and R. v. to contributory negligence, see post, p.

Gylee, 1 Cr. App. R. 242. 807. J' 6 6 . f , i

OHAP. I,] Lawful Ads Improperly Performed. 797

death arising from alleged negligence and a proceeding by way of indict-
ment for manslaughter. The latter is a charge imputing criminal negli-
gence, amounting to illegality ; and there is no balance of blame in
charges of felony ; but wherever it appears that death has been occasioned
by the illegal act of another, that other is guilty of manslaughter in point
of law, though it may be that he ought not to be severely punished.
If the jury should be of opinion that the prisoners were driving along the
road at too rapid a pace, considering the time and place, and were con-
ducting themselves in a careless and negligent way in the management
of the horse and gig, I am of opinion that such conduct amounts to
illegality, and that the prisoners must be found guilty on this indictment,
whatever may have been the negligence of the deceased himself ' (z).

Upon a trial for manslaughter it appeared that the prisoner was
standing up in a spring cart ; the reins were not in his hands, but lying
on the horse's back ; while the horse was trotting down a hill with the
cart, the deceased, a child about three years old, ran across the road before
the horse, and the wheel of the cart knocked it down and killed it. It did
not appear that the prisoner saw the child before the accident. Erie, J.,
told the jury, that if the prisoner had had the reins, and by using them
could have saved the child, he was guilty of manslaughter ; but if they
thought he could not have saved the child by pulling the reins or other-
wise by their assistance, they must acquit him (a).

Where on an indictment for manslaughter, it appeared that the de-
ceased was knocked down by a car driven by the prisoner, and great
numbers were in the street at the time : Perrin, J., told the jury, that
this unusual concourse of people, instead of offering any extenuation for
the prisoner, or diminishing the criminality of his careless driving, if they
found it to have been such, would but be a circumstance to add to it, and
that it was his duty, as well as of all driving upon such occasions, to take
more than ordinary precautions against accidents, and to use more than
ordinary diligence for the safety of the public (b).

A person driving a carriage is not bound to keep on the ordinary side
of the road ; but if he does not do so, he is bound to use more care and
diligence, and keep a better look-out, that he may avoid collision, than
would be requisite if he were to keep to his proper side of the road (c).

Vessels {d). — An inquisition charged that the prisoner did ' propel and
force ' a vessel against a skiff, whereby the deceased was drowned. The
counsel for the prosecution, in opening the case, said, that he apprehended
that the rule as to traversing the river Thames was the same as that
applicable to the mode of passing along any of the Queen's common
highways : therefore, if the speed at which, or the manner in which, the
prisoners were navigating the vessel, and were proceeding before they
saw the skiff, was such as to prevent them, after they did see it, from

{z) R. V. Longbottom, 3 Cox, 439. keep the left side of the road, and conse-

(a) R. V. Dalloway, 2 Cox, 273. quently in meeting should pass each other

(6) R. V. Murray, 5 Cox, 509 (Ir.). on the whip hand.' See Leame v. Bray, 3

Alderson, B. See 5 & 6 Will. IV. c. 35, 541.

s. 78. In Christian's note, 1 Bl. Com. 74, {d) As to defaults of master and crew

it is said ' that the law of the road is that of a ship causing danger to life, see 57 &

horses and carriages should respectively 58 Vict. c. 60, s. 225.

798

Of Homicide,

[BOOK ix:

stopping in time to prevent mischief to the person in it, they would be
responsible for the oiience of manslaughter, if his death happened in
consequence ; if, on a misty night, the prisoners were proceeding at such
a rate that they could not stop in time, their so proceeding was illegal,
and, as death ensued, they were responsible. Parke, B. : ' You have
stated the law most correctly. There is no doubt that those who navi-
gate the Thames improperly, either by too much speed, or by negligent
conduct, are as much liable, if death ensues, as those who cause it on a
public highway, either by furious driving or negligent conduct ' (e).

On an indictment for manslaughter it appeared that the prisoner
was a pilot, and was on board a Portuguese barque sailing down the
Thames ; the barque was manned entirely by Portuguese, who did not
understand BngUsh or nautical directions. The deceased was shrimping
in a small boat, and while such occupation is going on the boat is kept
motionless by the shrimp net. When the barque was about a quarter of
a mile distant the boat made a signal to her, and when she was within
twenty yards the deceased hailed her. The prisoner called to the Portu-
guese helmsman to turn the vessel to the starboard, but the helmsman,
not understanding the prisoner's directions, steered to the larboard
(i.e. port) ; the barque struck the deceased and killed him. Denman,
C.J., after consulting Alderson, B., told the jury : ' The law is, that if
the prisoner has produced the death by any conduct of his, he is guilty of
manslaughter. It appears to me that he was the person guiding and
directing the vessel, and that he is responsible for its management.
It is extremely unfortunate that he did not, in the first instance, make the
foreigners understand such simple directions as starboard and larboard.
You will consider whether there was some negligence upon the part of the
prisoner in not making the foreigners understand thoroughly. I take
your opinion whether he was guilty of negligence in this respect, and
whether that negligence caused the death. If you think so, you will find
him guilty' (/).

The captain and pilot of a steamer were indicted for manslaughter
in causing a death by running down a smack, and it appeared that at the
time the steamer started there was a man forward in the forecastle to
keep a look-out, but at the time when the accident happened, which was
about an hour afterwards, the captain and pilot were both on the bridge:
which communicates between the paddle-boxes ; the night was dark,
and it was raining hard ; the steamer had a light at each end of the
topsail yard ; an oyster smack, on board which the deceased was, was

(e) Pv. V. Taylor, 9 C. & P. 672. Parke,
B., also said : ' The allegation in the in-
quisition is, that the defendants forced
and propelled the vessel against the skiff :
evidence against those who gave the
immediate orders will be necessary to
sustain this allegation.' In R. v. Lloyd,
1 C. & P. 301, Garrow, B., where an in-
dictment for manslaughter stated that
the prisoner ' did compel and force A. B.
and 0. I), to leave ' a windlass, by means
of which the death was occasioned, and it
appeared that the prisoner, who was

working one handle of the windlass, went
away, and A. B. and C. D., then finding
they were not strong enough to hold the
windlass without him, let go their hold,
by reason of which the deceased was
killed, it was held that the words ' did
compel and force ' must be taken to mean
personal affirmative force applied to A. B.
and C. D., and therefore the prisoner must
be acquitted. These decisions turn on
pleading points.

(/) R. V. Spenoe, 1 Cox, 352.

CHAP. I.] Lawful Acts Improperly Performed. 799

coming up the Thames without any light on board ; the deceased was
below : a boy who was on board the smack stated that when the steamer
struck the smack he got on board the steamer, and found nobody forward ;
other witnesses were present to shew that no person was forward on the
look-out at the time. Park, J.; said, ' Then the captain is not responsible
in felony ; it is the fault of the person who ought to be there, and who may
have disobeyed orders ; if the captain leaves the pilot on the paddle-box,
as he did here, he is not criminally responsible. In a criminal case every
man is answerable for his own acts ; there must be some personal act ;
these persons may be civilly responsible/ Alderson, B. : 'If you could
shew that there was a man at the bow, and that the captain had said,
" Come away, it 's no matter about looking out," that would be an act of
misconduct on his part. If you can shew that the death of the deceased
was the result of any act of personal misconduct on the part of the captain,
you may convict him.' Park, J., said, ' Supposing he had put a man
there, and had gone ^;o lie down, and the man had walked away, do you
mean to say he would be criminally responsible ? And you must
carry it to that length, if you mean to make anything of it.' Alderson,
B. : ' I think this case has arrived at its termination ; there is no act of
personal misconduct or personal negligence on the part of these persons
at the bar ' (g).

On a trial for manslaughter of a person who was burnt in a ship, .
where the prisoner had struck a light with a match, and lighted a candle,
in a part of the ship forbidden by the ship's regulations, and had thrown
down the match before it was extinguished, but a period of six hours
elapsed without sign of fire by sight or smell ; Bramwell, B., thought the
evidence too slight to justify a conviction (h).

Mines. — Where an indictment for manslaughter alleged that the
prisoner was employed to superintend and keep in motion the working
of an engine at a colliery for pumping out the water from the colliery,
and thereby keeping a clear course for the passage of air and the
dispersing of foul air, and that the prisoner neglected to superintend
and keep in motion the working of the engine, and did thereby
prevent a clear course being left for the passage of the air, and
did cause noxious gases to accumulate, and then went on to state
that an explosion took place and death ensued ; which allegations
were proved. It was objected that the charge in the indictment was of
non-feasance only and not of misfeasance and that mere non-feasance
did not make a man criminally responsible. Wightman, J., ruled
that the facts as charged did not constitute an indictable offence,
observing that the indictment contained no direct allegation that it was
the duty of the prisoner to do that which he was alleged to have
neglected to do (i).

An indictment for manslaughter alleged that it was the duty of
the prisoner to cause to be ventilated a coal mine, and to cause it to

(3) R. V. Allen, 7 C. & P. 153. Quoere, Tost. 322. R. v. Green, 7 C. & P. 1.56.
whether this case amounts to more than (fi) R. v. Gardner, 1 P. & F. 669.

this, that the captain had placed a proper (i) R. v. Barrett, 2 C. & K. 343. But

person forward, who had left his post see R. v. Lowe, post, p. 800, and R. v,

without the captain perceiving it 1 See Hughes, post, p. 802.

800 Of Homicide. [book ix.

be kept free from noxious gases, and that the prisoner feloniously omitted
to cause the mine to be ventilated, and that noxious gases accumulated
and exploded, whereby the deceased was killed. It appeared that the
deceased was killed by the explosion of fire damp in a coUiery, of which
the prisoner was a sort of manager, and it was imputed on the part of the
prosecution that this explosion would have been prevented if the prisoner
had caused an air-heading to have been put up, as it was his duty to have
done. For the defence it was attempted to be proved that it was the
duty of one of the persons killed to have reported to the prisoner that an
air-heading was required, and that he had not done so. In summing up,
Maule, J., said : ' The questions for you to consider are, whether it was
the duty of the prisoner to have directed an air-heading to be made in this
mine ; and whether, by his omitting to do so, he was guilty of a want of
reasonable and ordinary precaution. If you are satisfied that it was the
plain and ordinary duty of the prisoner to have caused an air-heading to
be made in this mine, and that a man using reasonable diligence would
have done it, and that, by the omission, the death of the deceased occurred,
you ought to find the prisoner guilty of manslaughter. It has been
contended that some other persons were, on this occasion, also guilty of
neglect ; still, assuming that to be so, their neglect will not excuse the
prisoner ; for if a person's death be occasioned by the neglect of several,
. they are all guilty of manslaughter ; and it is no defence for one, who was
negligent, to say that another was negligent also, and thus, as it were, to
try to divide the negligence among them ' (j).

Upon an indictment for manslaughter it appeared that the prisoner
was an engineer, and his duty was to manage a steam engine employed
for the purpose of drawing up miners from a coal pit ; and when the skip
containing the men arrived at the pit's mouth his duty was to stop the
revolution of the windlass, so that the men might get out. On the day in
question he deserted his post, leaving the engine in charge of an ignorant
boy, who, before the prisoner went away, declared himself to the prisoner
to be utterly incompetent to manage such a steam engine as the one
entrusted to him. The prisoner neglected this warning, and threatened
the boy, in case he refused to do as he was ordered. The boy superin-
tended the raising of two skips from the pit with success ; but on the
arrival at the pit's mouth of the third, containing four men, he was unable
to stop the engine, and the skip being drawn over the pulley, one of the
men was thrown down the shaft of the pit, and killed on the spot. The
engine could not be stopped, ' in consequence of the slipper being too low,'
an error which any competent engineer could have rectified, but which
the boy in charge of the engine could not. For the prisoner it was con-
tended that a mere omission or neglect of duty could not render a man
guilty of manslaughter (k). CampbeU, C.J., said : ' I am clearlv of
opmion that a man may, by a neglect of duty, render himself liable to be
convicted of manslaughter, or even of murder ' (l).

'j'-'^j",',^^!?^!'?.*^-*^-^^^- ^^^^- Campbell discussed this case with Mr.

V. Swindall, 2 C. & K. 230, ante, p. 796, as Greaves, Q.C., and they fully concurred

/r ^ iD^ 'P,^"'*" J t^** » I""" ™'gli* render himself equally

TOO *'■ ''"' ^'^^ ^' "• ^'''^"' "«'«' culpable by neglecting to do Ws duty ashy

^ii\T> T a wilful act. ^.jr., it is the duty of a points-

{1} R. V. Lowe, 3 C. & K. 123. Lord man to turn the switches on the approach

CHAP I.] Lawful Acts Improperly Performed. 801

Upon a trial for manslaughter, it appeared that it was the prisoner's
duty to attend to a steam engine, but on the occasion in question he had
stopped the engine and gone away, and that, during his absence, a person
came and put it in motion, and being unskilled was unable to stop it again,
and in consequence of the engine being thus put in motion, the deceased
was killed. Alderson, B., stopped the case, saying that the death was
the consequence, not of the act of the prisoner, but of the person who set
the engine in motion after the prisoner had gone away ; that it is necessary
in order to a conviction for manslaughter, that the negligent act which
causes the death should be that of the party charged (m).

Upon an indictment for manslaughter it appeared that the prisoner
was a banksman at the top of a shaft of a colliery, where there were an
engine and ropes to send down bricks and materials in a bucket, and draw
up the empty baskets. It was his duty to send down materials, and to
superintend the proper letting down of the buckets, and to place the stage
hereinafter mentioned. The buckets were run on a truck on to a movable
stage over half of the area of the top of the shaft, and there the bucket
was attached and lowered down, the stage being removed. The prisoner
on the occasion in question had omitted to put or cause to be put the stage
on the mouth of the shaft, and in the absence of the stage a bucket with
a truck and bricks ran along the tram-road, into the shaft, fell down the pit
and killed the deceased. It did not appear that the prisoner was directing
or driving the waggon at the time. It was left to the jury to say whether
the accident happened by neghgence of the prisoner, and whether that
negligence arose from an act of omission or commission, and they foimd
that the death arose from the negligent omission of the prisoner in not
putting the stage on the mouth of the pit ; and, upon a case reserved.
Lord Campbell, C.J., delivered judgment : ' We are of opinion that this
conviction ought to be affirmed. It was the duty of the prisoner to
place the stage on the mouth of the shaft ; the death of the deceased
was the direct consequence of the omission of the prisoner to perform
this duty ; if the prisoner, of malice aforethought, and with a premedi-
tated design of causing the death of the deceased, had omitted to place
the stage on the mouth of the shaft, and the death of the deceased had
thereby been caused, the prisoner would have been guilty of murder.
According to the common-law form of an indictment for murder by reason
of the omission of a duty, it was necessary that the indictment should
allege that it was the duty of the prisoner to do the act, or to state facts
from which the law would infer this duty (w). But it has never been
of - train, and if he wilfully neglects to such a degree of negligence as some proof

do so, whereby an accident happens and of malice.' ' There must be negligence so

a man is killed ; another man wilfully turns great as to satisfy a jury that the offender

some points with which he has nothing to had a wicked mind in the sense of being

do, and a death occurs ; the offence of reckless and careless whether death oc-

the one is precisely the same as that curred or not.' See R. v. NiohoUs, 13 Cox,

of the other. A man who wilfully neglects 75, Brett, J. E. v. Handley, 13 Cox, 79.

to feed his infant child is just as guilty of R. v. ElUott, 16 Cox, 710.

murder as if he poisoned it. In Lynch v. (m) R. v. Hilton, 2 Lew. 214 ; Cf.

Nurdin, 1 Q.B. 29, Denman, C.J. said, that R. v. Waters, 6 C. & P. 328, ante, p.

' between wilful mischief and gross negli- 667. , o r, ^ t, c„ t>

genoe the boundary line is hard to trace ; («■) R. v. Awards 8 C & P. 611 R.

I should rather say, impossible. The v. Goodwin [1832], MS. C.S.G. : 1 Russ.

law runs them into each other, considering C. & M. (3rd ed.) 562.

VOL. I.

802

Of Eomicide.

[BOOK IX.

doubted that if death is the direct consequence of the malicious omission
oE the performance of a duty (as of a mother to nourish her infant child) (o),
this is a case of murder. If the omission was not malicious, and arose
from negligence only, it is a case of manslaughter (p).

Railways.— The prisoner (who was indicted for manslaughter of G.)
was employed by H., a colliery proprietor, who was also owner of a
tramway crossing a turnpike road. It was the prisoner's duty to give
warning to any persons when any trucks might cross the said road. The
tramway was in existence before the road, and in the Act by which the
road was made there was no clause imposing on H. the duty of placing
a watchman where the tramway crossed the road. The deceased was
crossing the tramway, having received no warning that any trucks were
about to cross the road. As he was crossing, however, he was knocked
down by some trucks, and was killed. On inquiry, it appeared that the
prisoner was absent from his post at that time, although he had strict
orders never to be absent. Lush, J., said, that there being no clause in
the Act compelling H. to place a watchman where the tramway crossed
the road, the prisoner was merely the private servant of H. ; and that,
consequently his negligence did not constitute such a breach of duty as
to make him guilty of manslaughter (q).

The prisoner was a porter at the Brighton Station, and it was his duty
to start the trains. It being an excursion day, three up trains came in
succession, all of them late, so that none of them could be started at the
proper time. There was a rule of the company, that under such circum-
stances no train should be started at intervals of less than five minutes
after the preceding one. The case against the prisoner was that he had
started the three trains so that there was only an interval of three or four
minutes between the second and third. The first train arrived safely at
the Clayton Tunnel (seven miles from Brighton), and passed safely through
and the man at the Brighton end of the tunnel, when it entered, tele-
graphed ' train in ' ; but, owing to some improper working of the signal
at his end, became confused, and on the arrival of the second train, not
feeling certain that he had received the signal which authorised him to
send on the second train, again telegraphed ' train in ' just as the second
train had gone into the tunnel. Fearing that the signal might be mis-
understood, he shewed the red fiag, which he supposed the second train
had not seen, but which had the effect of pulling up the second train in
the tunnel. He again telegraphed to ask ' is that train out ? ' upon which

(o) The neglect on the. part o£ the
mother to provide for the child must be
subsequent to the birth : thus mere failure
on the part of the mother to make proper
provision for her expected confinement
resulting in the complete birth and subse-
quent death of a child does not amount to
manslaughter (B. v. Izod, 20 Cox, 690,
Channell, J.), though if the jury are satis-
fied that the mother, having made up her
mind to be alone at the time of the birth,
caused its death by wicked negligence after
its birth, they should return a verdict of
guilty. R. V. Handley, 13 Cox, 79, Brett,
J., at p. 81,

(p) R. V. Hughes, Dears. & B. 248.

(?) R. V. Smith, 11 Cox, 210. Query
whether this case is accurately reported.
In all probability the facts proved at the
trial shewed that the prisoner had only
neglected his duty to his employer by
being absent from his post, and that the
other servant managing the traffic, know-
ing he was absent, allowed the truck to
cross the road. To have proved the
prisoner guilty it must have been shown
that he neglected some duty which he
owed to the deceased as one of the public
using the highway.

CHAP. I.] Lawful Acts Improperly Performed. 803

the man at the north end of the tunnel, supposing that this referred to
the first train, telegraphed ' train out,' whereupon the porter at the
Brighton end of the tunnel sent the third train into the tunnel, and this
ran into the second, which had come to a standstill in consequence of
seeing the red flag. Brie, C.J., is reported to have told the grand jury
that ' they must be satisfied before they found the bill that there was a
priTna facie case of such criminal negligence as had been the proximate
and efficient cause of the catastrophe. The negligence imputed appeared
to be the sending of one train after another in a shorter interval of time
than, according to the rules, he ought to have done. A mistake, indeed,
was said to have arisen from the negligence of the defendant. StiU, if
the particular negligence imputed to the prisoner appeared not to have
been the proximate cause of the catastrophe, the bill for manslaughter
ought not to be found ; and if it appeared that other causes had inter-
vened, the prisoner's negligence would not have been the proximate and
efficient cause of the deaths which had occurred. That this was in entire
accordance with the authorities will appear from the most recent cases.
The case is to be clearly distinguished from that of joint negligence. It
is indeed well settled, that it is no defence in a case of manslaughter that
the death v^s caused by the negligence of others as well as by that of
the prisoner ; for if the death of the deceased be caused partly by the
negligence of others, the prisoner and all those others are guilty of
manslaughter (r).

(r) B. V. Ledger, 2 F. & F. 857. Erie,
C. J., referred toR. v. Haines, supra, p. 799,
and R. v. Barrett, supra, p. 800. The
great importance of placing the culpa-
bility of railway ofificials in a clear Ught
has caused the following remarks, in which
the words ' neglect ' and ' negligence ' are
always used as importing such a degree
of culpability as, if death ensued from it,
the offence would amount to manslaughter
at least. First, then, a clear distinction
exists between negligence and a wilful act
— a distinction well illustrated by the
numerous cases, in which the rule has
been established, that a master is answer-
able for the negligent, but not for the
wilful act of his servant. And it should
seem that if a railway oflScial deliberately
starts a train in direct opposition to the
orders he has received, this is a wilful act,
and that, as it is an intentional violation
of his duty, it ought to be considered pre-
cisely in the same light as if it were done
by a person who had no authority what-
ever to interfere with the train. Next,
where a train is started before its proper
time, and it runs into another train and
kills a person, it seems that, whether the
starting of the train be considered as a
wilful or negligent act, the starter of the
train is guilty of manslaughter. If the
accident would not have happened if the
train had not been started till its proper
time the case seems clear from doubt, for
there the too early starting of the train is
manifestly the cause of the death ; and

supposing the accident would have hap.
pened had the train been started at the
proper time, still the death was caused at
the time when it occurred by the culpable
conduct of the starter of the train ; in
other words, the death arose from the
culpable act of the starter of the train, and
sooner than it otherwise would have done,
and the ease seems to be very similar to
those where the death of a person is accel-
erated by violence {ante, p. 692), and which
establish the principle that if a man is
caused by a wrongful act to die at any
time earUer than he otherwise would have
done, it is a case of manslaughter, and if
the accelerating the death of a sick man
be such an offence, it is not easy to suggest
a reason why the accelerating the death of
a healthy man is not so also. It must also
be observed, that in such a case all that is
certain is what has actually happened ; it
is mere speculation what jnight have hap-
pened if the train had been started at its
proper time : the mere shifting of the
deceased from one seat to another might
have saved his life. Nor is it any excuse
that the train which was run into was met
with at a place at which it would not have
been but for the wilful or negligent act of
some other person : the answer to this
excuse is, that the time for starting having
been fixed expressly for the purpose of
preventing the possibility of such acci-
dents, whether they might arise from the
preceding train being met with on the line
through negligence or otherwise, it does

3 p2

804

Of Homicide.

[BOOK IX.

On an indictment for manslaughter against an engine-driver and
fireman, it appeared that by the general rules of the railway company
the fireman was always to follow the directions of the engine-driver, but
both of them had the duty of looking out, the engineman being directed
to attend to and act upon signals, the fireman obeying his directions.
There was a regular system of signals, in which a red flag by day shewed
that the train must stop instantly. On Ascot race day special instructions
were issued, which materially diSered from the regular rules, and by them
the red signal did not mean, as it usually did, ' Stop,' but only ' Danger,'
and that meant that the engine should proceed with caution. The rules
prohibited engines from running tender foremost ; but there was no turn-
table at Ascot, and the engines consequently returned with their tenders
foremost. The return trains were started at irregular intervals of about
five minutes by the station-master and trafiic manager at Ascot. One of
them stopped at Egham, and about five minutes afterwards another
was started from Ascot. The prisoners who had charge of it, did not
know that the preceding train would stop at Egham ; the stoppage
delayed it two or three minutes ; when the prisoners' train passed the
two stations before Egham the signal was red. There was contradictory
evidence as to the pace their train went ; but, after passing the auxiliary

not lie in the starter's mouth to excuse his
own wrongful act by such a wilful or
negligent act of another. Lastly, it is
submitted that the clear rule of the law is,
that every one who contributes by his
wilful or negligent act to the death of a
m'an is guilty of manslaughter, although
there be no community of purpose or
action between them, and although the act
of the one may be proximate to, and the
acts of the others remote from, the im-
mediate cause of death ; and that the
only correct question in these cases is,
whether the act did in any way whatever
contribute to the death. In R. v, Haines,
the prisoner's duty was to cause an air-
heading to be put in a mine ; and it was
alleged to be the duty of another person to
report to the prisoner that an air-heading
was wanting — such totally different duties
that the neglect of either could not possibly
be the joint neglect of the two parties.
Now Maule, J., said : ' It has been con-
tended that some other persons were also
guilty of neglect ; still, assuming that to
be so, their neglect will not excuse the
prisoner, for if a person's death be occa-
sioned by the neglect of several, they are
all guilty of manslaughter ; and it is no
defence for one who was negligent to say
that another was negligent also, and thus
as it were, try to divide the negligence
among them.' The decision is directly
against there being any limitation to joint
negligence or proximate negligence, and,
as far as it goes, entirely supports the posi-
tion above laid down. Suppose three
railway officials each negligently turned
three different sets of points at A., B., and

C, and that the result was an accident and
death, it is submitted that all of them
would be guilty of manslaughter, provided
the act of each contributed in any degree
to the accident. So again, suppose A. and
B. each negligently turned the points for
two different trains, so that the trains
were caused thereby to run into each other,
can it admit of doubt that both would be
responsible for the result ? In R. v.
Barrett, ante, p. 799, the decision turned
on the defect in the indictment, which,
being in the old form, contained no allega-
tion that it was in the prisoner's duty to do
that which he was alleged to have neg-
lected to do. See also R. v. Swindall, ante,-
p. 796 ; and R. v. Longbottom, ante, p. 797,
as to the negligence of the deceased form-
ing no excuse. — C. S. G. Where a fatal
railway accident had been caused by the
train running off the line at a spot where
rails had been taken up without allowing
sufficient time to replace them, and also
without giving sufficient, or at all events,
effective warning to the engine-driver ;
and it was the duty of the foreman of plate-
layers to direct when the work should be
done, and also to direct effective signals
to be given : Held, that though he was
under the general control of an inspector
of the district, the inspector was not liable;
and that the foreman was so, assuming
his negligence to have been a material and
substantial cause of the accident, even
although there had also been negligence
on the part of the engine-driver, in not
keeping a sufficient look-out. R. v. Benge
4 P. & F. 504. '

ChAp t] Lawful Acts improperly Performed. 805

signal before reaching Egham, the speed was slackened. The prisoners'
train, not having to stop at Egham, went right through the station ; a
minute or two afterwards the engineer saw the preceding train, and tried
to stop his train, but did not succeed in stopping the train before it ran
into the other train, and caused the death of several persons. Willes, J.,
held that in a criminal prosecution an inferior officer must be held justified
in obeying the directions of a superior not obviously improper or contrary
to law ; that is, if an inferior officer acted honestly upon what he might
not unreasonably deem to be the effect of the orders of his superior, he
would not be guilty of culpable negligence, these orders not appearing to
him, at the time, to be improper or contrary to law. It appeared that
the prisoners had nothing to do with the general management or regulation
of the traffic, and their duty was to obey the special instructions issued
to them as well as they could, presuming there was no apparent illegality
in them ; and in that case, provided they put the best construction they
could upon them, and acted honestly in the belief that they were carrying
them out, they were not criminally responsible for the result. In a civil
case they might be responsible, but not criminally. As to the fireman,
as he was bound to follow the direction of the engineman, there was no
case. The jury then interposed, and said that they were aU of opinion
that there was no case of culpable neghgence against either of the prisoners.
Willes, J., said he was quite of the same opinion, and thought that the
prisoners ought not to be convicted on a criminal charge. They had
instructions of an unusual kind, and were doing their best at the time to
prevent an accident ; that is, they were trying to put on the brake so near
to the time when, according to any view, they could be expected to have
done so, that they can hardly be deemed guilty of culpable negligence.
They only saw a red signal, and that, according to their special instructions,
did not mean ' Stop.' There was no symptom of danger ; they did not
know that the other train had stopped at Egham, and they had no
instructions to do so ; and so they went right on, although a minute
afterwards they did their best to stop the train. The arrangement was
such as could not but cause imminent danger of the second train running
into the first, which had passed only five or six minutes before, and had
stopped three minutes at Egham. He therefore concurred in the verdict.
In the course of the case, Willes, J., also held that a witness could not be
asked to give an explanation as to his construction of the efiect of the
rules. The rules were in writing, and must speak for themselves, and
the judge must declare their meaning. The special rules, if not consistent
with the general rules, must override them, but their construction was
for the judge. And that an officer of the Board of Trade could not be
asked his opinion on the mode of conducting the traffic (which rather
affected the company than the prisoners), nor whether in his judgment,
as a man of experience, the driver of the engine ought to be convicted
of negligence, nor (it seems) whether, in his opinion, the driver had kept
a sufficient look-out ahead ; but that he might be asked whether, sup-
posing the train was going about forty miles an hour, it could have been
stopped (s).

(s) R. V. Trainer, 4 F. & F. 105.

806 Of Homicide. LBook ix.

Steamships.— Where on a trial for manslaughter a steam tug, of
which the prisoners were the captain and engineman, had exploded and
killed the deceased whilst the prisoners, with the deceased, the stoker,
were the only persons on board. The lever of the safety valve was
found to have been so tied down by weights that it could not act as a
safety valve. There was therefore considerably more pressure on the
boiler plates than they could bear. There was a government valve , one
of the keys to the lock of which was kept by a government inspector,
and the other ought to have been in possession of the captain ; but
there was no proof that he had the key at the time of the explosion, and
this valve was in such a state that it could not work. If it had been
working, no mischief could have occurred. At the time of the explosion
the tug was racing with a steamer, and had been so for some time. Against
the captain it was urged that he had the control of the tug, and that he
was guilty of culpable neglect in not seeing that the government valve
was put into working order, or in allowing the other valve to be in a state
in which it could not work. As to the engineer, it was his duty to attend
to the working of the engine, and he was bound to see that too much
steam was not generated. Hill, J., held that there was no case for a
conviction. There was a difficulty in shewing that either of the prisoners
were in a position to see that the government valve was out of order ;
and there was nothing inconsistent with the assumption that the deceased
himself could see it to be out of order ; and it was perfectly possible that
he might have put the valve in order without the intervention of either
of the prisoners ; if so, it was clear that a felony could not be made out (t).

On an indictment for manslaughter it appeared that thirteen persons
embarked in a boat, besides two watermen, of whom the prisoner was one ;
two witnesses proved, that by the swell of a steamer in motion the boat
was carried against the bows of another steamer, and that as soon as it
struck the prisoner called out to the passengers to sit still, but they all
jumped up and tried to lay hold of the steamer, and in consequence the
boat was upset. Had the passengers remained quiet, the witnesses be-
lieved the accident would not have happened. Another witness was of
opinion that the fault lay in the prisoner's pushing ofE the boat from the
stairs with one of the oars, he standing upright at the time, instead of
being seated and having the command of the sculls ; he ought to have
known the danger under such circumstances of crossing the strong tide that
rushed through the arch of the bridge ; but for his pushing off as he did,
the boat would have cleared the steamer. He thought the same thing
might have happened to the boat if there had been only three persons in
it or only one. Williams, J. : 'If the circumstance of the passengers
jumping up really caused the accident, the overloading of the boat was
immediately productive of such a result, and thus the prisoner is answer-
able ; for he should have contemplated the danger of such a thing
happening. If the fact of the prisoner standing up in the boat was the
cause of the catastrophe, then it may be gross negligence on his part to
have done so ; because he is supposed to be acquainted with the force and

(() R. V. Gregory, 2 F. & F. 153. The other safety valve, or at least might have

deceased might himself have weighted the seen that it was so weighted.

CHAP 1.1

Of Excusahle Homicide.

velocity of the tide, and the danger of crossing it under the circumstances.
On the whole it is a question for the jury, whether the deceased met his
death either by the gross carelessness of the prisoner in the management
of the boat, or in taking on board a greater number of passengers than
it was capable of safely carrying ' (u).

Contributory Negligence. — It has been generally held that it is no
defence that the deceased was guilty of contributory negligence. The
sole question for the jury is, did the negligence of the prisoner materially
contribute to the death of the deceased (v). In E. v. Birchall (w), Willes, J.,
is reported to have said that a man was not criminally responsible for
negligence for which he would not be responsible in an action, but on
this case being cited in R. v. Jones (x), Lush, J., said that it was quite at
variance with what he had always heard, and he ruled that there was no
contributory negligence in merely getting into a vehicle and allowing
himself to be driven, even though the driver was obviously drunk (y).

In R. V. Dant (z), it was held that if a commoner turns out on a com-
mon, across which there are public footpaths, a horse which he knows to
be vicious and dangerous, and the horse kicks and kills a child, the
commoner is liable to be convicted of manslaughter, even though the
child has strayed on to the common a little way off the path {a).

In former editions reference was made to a local and personal Act
(7 & 8 Geo. IV., c. 75), (&) making it a misdemeanor to take on board
wherries, &c., more persons than by law allowed, if any such persons
should be drowned. The Act was repealed in 1859 (22 & 23 Vict., c. 133),
and the particular portion was not re-enacted.

PART IV.— OF EXCUSABLE AND JUSTIFIABLE HOMICIDE.

Preliminary.

By the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100),
s. 7, ' No punishment or forfeiture shall be incurred by any person who
shall kill another by misfortune, or in his own defence, or in any other
manner, without felony ' (c).

(u) R. V. Williamson, 1 Cox, 97, Gur-
ney, B., and Williams, J.

(v) See per Pollock, C.B., in R. v.
Swindall, ante, p. 796 ; R. v. Haines, ante,
p. 800 ; R. V. Walker, 1 C. & P. 320. Per
Byles, J., in R. v. Kew, 12 Cox, 355, and
in R. V. Hutchinson, 9 Cox, 555 ; and see
R. V. Dant, L. & C. 567, in/ra.

(w) 4 F. & F. 1087.

[x) 11 Cox, 544. See Archb. Cr. PI.
(23rd ed.) 800.

(y) It has been suggested in a colonial
case that evidence which would be ad-
missible to establish contributory negli-
gence might in a criminal case be admitted
to show that the death was not due to
the culpable negligence of the defendant.
See R. V. Bunney [1894], 6 Queensland
L. J. 80, Griffith, C.J. See 1 Beven,
Negligence (Srd ed.) 149.

(?) L. & C. 567 ; 34 L. J. M. C. 119.

(a) Blackburn, J., said : ' I by no means
mean to say that the conviction might
not have been supported if the child had
been killed by the horse at the time when
she was straying upon the common far
from the pubUc path.'

(b) It was observed upon 10 Geo. II.
c. 31 (rep.), containing a more severe
punishment for an offence of this kind,
that it might serve as a caution to stage
coachmen and others, who overload their
carriage for the sake of lucre, to the great
danger of the lives of their passengers, the
number of whom are regulated by Act of
Parliament. 1 East, P.C. 264.

(c) This section re-enacts 9 Geo. IV.
c. 31, s. 10, which Act by s. 1 repealed
the Statute of Gloucester, 6 Edw. I. c. 9,
under which the offender might be put
to sue out a pardon. See Pollock and
Maitland, Hist. Eng. Law, vol. ii, p. 477.

808 Of Homicide: [feooK iX.

Excusable homicide is of two kinds : either per infortunium, by mis-
adventure; or se et sua defendendo, upon a principle of self-defence.
The term excusable homicide imports some fault in the party by whom it
has been committed ; but of a nature so trivial that the law excuses such
homicide from the guilt of felony. Justifiable homicide is of several
kinds : as it may be occasioned by the performance of acts of unavoidable
necessity, where no shadow of blame can be attached to the party killing ;
or by acts done by the permission of the law, either for the advancement
of public justice, or for the prevention of some atrocious crime.

Sect. I a.— Of Excusable Homicide by Misadventure.

Homicide by misadventure is where in doing a lawful act, without any
intention of bodily harm, and using proper precautions to prevent
danger, one man unfortunately happens to kill another (d). The act
must be lawful ; for if it is unlawful, the homicide will amount to murder,
or manslaughter, according to the attendant circumstances (e), and it
must not be done with intent to inflict great bodily harm ; for then the
legality of the act, considered in the abstract, would be no more than a
mere cloak, or pretence, and consequently would avail nothing. The
act must also be done in a proper manner, and with due caution to prevent
danger (/).

Thus, if people, in following their common occupations, use due caution
to prevent danger, and nevertheless happen, unfortunately, to kill any one,
such killing is homicide by misadventure (g). Thus where a person,
driving a cart or other carriage, happens to drive over another and kill
him, if the accident happen in such a manner that no want of due care
could be imputed to the driver, it will be accidental death, and the driver
will be excused (h). Where a person was riding a horse, and the horse,
being whipped by some other person, sprang out of the road, and ran over
a child and killed it, this was held to be misadventure in the rider, but
manslaughter in the person who whipped the horse (i).

It has been shewn (/), that where parents, masters, and other persons,
having authority in foro domestico, are giving to those under their care
reasonable and moderate correction, if by the struggling of the party
corrected, or by some other misfortune death ensue, the killing will be
only misadventure {h).

As to accidental killing whilst engaged in a lawful sport, see ante,
p. 786.

The punishment of excusable homicide (d) 1 East, P.O. 22], 2fi0, 261. Post.

seems never to have gone beyond forfoi- 258. I Hawk. c. 29, s. I.

ture of some or all of the goods of the (e) Ante, pp. 656, 780.

slayer (4 Bl. Com. 188. V Hale, 425. (/) 1 East, P.O. 261.

1 Hawk. 0. 29, s. 20. Eoat. 281), and (g) Ante, p. 789. 1 Hale, 472, 470.

pardon and writ of restitution were 1 Hawk. c. 29, as. 2 & 4. Fost. 262. 1

granted as of course on paying the ex- East, P.O. 262.

pense of suing them out. To prevent (h) Post. 263. 1 Hale, 476. 0. B,

this expense it became usual to direct Sess. before Mich. T. 1704. MS. Tracy,

acquittal where the killing was obviously 32. 1 East, P.O. 263.

by misadventure or in self-defence (i) 1 Hawk. c. 29, s. 3.

(4 Bl. Com. 188. Post. 288. 1 East, (j) Ante, p. 767.

P.C. 222), and auch practice is estab- (k) 1 Hale, 454, 473, 474. 4 Bl. Com.

lished as law by the enactment in the 182. As to abuae of the power to correct,

text. vide ante, p. 767.

CSAI*. I.]

Of Excusable Homicide.

Sect. Ib. — Op Excusable Homicide in Self-Defence.

Homicide in self-defence is homicide committed se et sua defendendo,
in defence of a man's person or property, upon some sudden affray,
considered by the law as in some measure blameable, and barely
excusable (l).

When a man is assaulted in the course of a sudden brawl or quarrel,
he may, in some cases, protect himself by killing the person who assaults
him, and excuse himself on the ground of self-defence. But, in order to
entitle himself to this plea, he must shew first, that before a mortal stroke
given he had declined further combat ; secondly, that he then killed his
adversary through mere necessity, in order to avoid immediate death (m).
Under such circumstances, the killing will be excusable self-defence,
sometimes expressed in the law by the word chance medley or casual
affray (w).

Homicide upon chance medley borders very nearly upon manslaughter,
and, in fact and experience, the boundaries in some instances are scarcely
perceivable, though in consideration of law they have been fixed (o).
In both cases it is supposed that passion has kindled on each side, and
blows have passed between the parties ; but in the case of manslaughter,
it is either presumed that the combat on both sides had continued to the
time the mortal stroke was given, or that the party giving such stroke
was not at that time in imminent danger of death (p). The true criterion
between them is stated to be this : when both parties are actually com-
bating, at the time the mortal stroke was given, the slayer is guilty of
manslaughter ; but if the slayer has not begun to fight, or, having begun,
endeavours to decline any further struggle, and afterwards, being closely
pressed by his antagonist, kills him to avoid his own destruction, this is
homicide excusable by self-defence (q).

In all cases of homicide excusable by self-defence, it must be taken
that the attack was made upon a sudden occasion, and not premeditated,
or with mahce ; and, from the doctrine which has been above laid down, it
appears that the law requires that the person who kills another in his
own defence should have retreated as far as he conveniently or safely
could, to avoid the violence of the assault, before he turned upon his
assailant ; and that not fictitiously, or in order to watch his opportunity,
but from a real tenderness of shedding his brother's blood. For in no case
will a retreat avail, if it be feigned, in order to get an opportunity or
interval to enable the party to renew the fight with advantage (r). The
party assaulted must therefore flee, as far as he conveniently can, either

(I) Fost. 273. ' Self-defence culpable,
but through the benignity of the law ex-
cusable.'

(m) 1 East, P.O. 280. Post. 273.

(m) Or chaude melie, an affray in the
heat of blood, or passion. Both of them
are pretty much of the same import : but
the former has, in common speech, been
often erroneously applied to any manner
of homicide by misadventure ; whereas
it appears by 22 Hen. VIII. c. 5 (rep.),

24 Hen. VIII. c. 5 (rep.), and the ancient
books (Staundf. 16 ; 3 Co. Inst. 57 ; Kel.
(J.) 67) that it is properly apphed to such
killing as happens in self-defence upon a
sudden rencounter. 4 Bl. Com. 184.
Post. 275.

(o) Fost. 276.

(p) Fost. 277.

(q) 4 Bl. Com. 184.

(r) 1 Hale, 481, 483. Fost. 277. 4 Bl.
Com. 185.

810 Of Homicide. tBooK IX.

by reason of some wall, ditch, or other impediment, or as far as the
fierceness of the assault will permit him ; for it may be so fierce as not
to allow him to jdeld a step without manifest danger of his Ufe, or great
bodily harm, and then, in his defence, he may kill his assailant instantly (s).
Before a person can avail himself of the defence, that he used a weapon
in defence of his life, he must satisfy tlie jury that that defence was
necessary ; that he did all he could to avoid it ; and that it was necessary
to protect his own life, or to protect himself from such serious bodily harm,
as would give him a reasonable apprehension that his life was in immediate
danger. If he used the weapon, having no other means of resistance, and
no means of escape, in such case, if he retreated as far as he could, he
would be justified (t).

Where the prisoner levelled a gun at the deceased, and it was a question
whether the gun went off accidentally or not, Cockburn, C.J., left the
following questions to the jury : — 1. Was the discharge of the gun
intentional or accidental ? (a) If intentional, was it from ill feeling to the
deceased, or desire to get rid of him ? in which case it would be murder,
(b) If it was not so done, was it done by the prisoner in self-defence, and
to protect himself from death or serious bodily harm intended towards
him by the deceased ? or (c) from the reasonable apprehension of it
induced by the words and conduct of the deceased, though the latter
may not, in fact, have intended death or serious injury ? (d) If not so,
was it done after an assault made by the deceased on the prisoner, though
short of an assault calculated to kill or cause serious bodily injury ? or
(e) was it done under such a degree of alarm and bewilderment of mind,
caused by the conduct of the deceased, as to deprive the prisoner, for the
time, of his reason and power of self-control ? or (f ) was the eiiect of the
language and conduct of the deceased such as to provoke the angry
passions of the prisoner so as to deprive him of his reason and power of
self-control ? 2. If the discharge of the gun was accidental, in which
case the prisoner cannot be convicted of murder, but may be of man-
slaughter, (a) Was the gun levelled by the prisoner at the deceased in
self-defence against an attack of the deceased endangering life or limb,
or reasonably apprehended by the prisoner as likely to do so, in either of
which cases the prisoner would be entitled to an acquittal, or (b) was the
gun levelled by the prisoner at the deceased unnecessarily under the
circumstances, but without the intention of discharging it, in which case
it would be manslaughter {u).

If A. challenges B. to fight, and B. declines the challenge, but lets A.
know that he will not be beaten, but will defend himself ; and then B.,
gomg about his business and wearing his sword, is assaulted by A., and
killed ; this is murder in A. But if B. had killed A. upon that assault.
It had been se defendendo, if he could not otherwise have escaped ; or
bare manslaughter, if he could have escaped and did not (v).

The law appears to be that if the blow, from the effect of which the
deceased died, was given purely in self-defence, as distinguished from a
desire to fight, it is excusable, and it is a question for the jury whether

(s) 1 Hale, 483. 4 Bl. Com. 185. Coltman, J. See R. v. Bull, 9 C. & P. 22.

it) R. V. Smith, 8 C. & P. 160, per Bos- (u) R. v. Weston, 14 Cox, 346.

anquet, J., pr(S8enHbus, BoUand, B., and («) 1 Hale, 453.

CfiAP i.]

Of Excusable Homicide.

811

the prisoner struck the blow in self-defence, or whether he really desired
to fight (w).

As in the case of manslaughter upon sudden provocation, where the
parties fight upon equal terms, all mahce apart, it matters not who gave
the first blow : so in the case of excusable self-defence, it will seem that
the first assault in a sudden afiray, all maUce apart, will make no difference,
if either party quit the combat and retreat, before a mortal wound be
given (x). According to this doctrine, if A., upon a sudden quarrel,
assaults B. first and upon B.'s returning the assault A. really and bona
fide flies, and being driven to the wall, turn again upon B. and kills him,
this will be se defendendo (y) ; but some writers have thought this opinion
too favourable, inasmuch as the necessity to which A. is at last reduced
originally arose from his own fault (z). With regard to the nature of the
necessity, it may be observed that the party kilUng cannot, in any case,
substantiate his excuse, if he kill his adversary even after a retreat,
unless there were reasonable ground to apprehend that he would
otherwise have been killed himself (a).

Under the excuse of self-defence, the principal civil and natural
relations are comprehended : therefore, master and servant, parent and
child, husband and wife, killing an assailant in the necessary defence of
each other, respectively, are excused ; the act of the relation assisting
being considered the same as the act of the party himself (b). So where
a son shot and killed his father, who was assaulting his mother, Lopes,
J., told the jury that if the accused had reasonable grounds for believing,
and honestly believed that his mother's life was in imminent peril, and
that the shot which he fired was absolutely necessary for the preservation
of her life, then he ought to be excused from the consequences of the
homicide (c).

If A., in defence of his house, kills B., a trespasser, who is endeavouring
to enter it, A. is guilty of manslaughter ; at least unless his life was in
danger. But if B. enters the house, and A., having first requested him
to depart, gently lays his hands upon him to turn him out, and then
B. turns upon him and assaults him, and A. then kills him, it will be
se defendendo, supposing that he was not able by any other means to
avoid the assault, or retain his lawful possession (d). In such a case
A., being in his own house, is not under an obligation to retreat as in
other cases of self-defence, as that would be to give up the protection
of his house to his adversary by his flight (e).

{w) R. V. Knock, 14 Cox, 1.

(x) Fo3t. 277.

(y) 1 Hale, 482.

(z) 1 Hawk. 0. 29, 3. 17. Hale seems
also to distinguish the case of him who is
first attacked from the assailant, with
respect to the point of retreating, 1 Hale,
482. Upon this subject East (1 P. C. 281,
282), says : ' At any rate I think there is
great difficulty in applying the distinction
taken by Hale and Hawkins against him
who makes the first assault, to the case of
mutual combat by consent, though upon
a sudden occasion, where neither of the
parties makes an attack till the other is

prepared ; because in these cases it
matters not who gives the first blow ; it
forms no ingredient in the merits of the
question.'

(a) Fost. 273, 275, 289. 4 Bl. Com.
184.

(6) 1 Hale, 484. 4 Bl. Com. 186.

(d) 3 Edw. III. Coron. 35. Crompt.
27 b. 1 Hale, 480.

(e) Vide post, p. 815. 1 Hale, 486.
In R. V. Dakin, 1 Lew. 166, where the
prisoner was a lodger at a house, to which
there was a back-way, of which the
prisoner was ignorant, it being the first

812

Of Homicide.

[BOOK li.

Necessity.— At the trial of an indictment for murder it appeared, upon
a special verdict, that the prisoners, D. and S., seamen, and the deceased,
a boy between seventeen and eighteen, were cast away in a storm on the
high seas, and compelled to put into an open boat, that the boat was
drifting on the ocean, and was probably more than a thousand miles
from land ; that on the twentieth day, when they had been nine days
without food, and seven without water, D., with the assent of S., killed
the boy, and both D. and S. fed on his flesh for four days ; that at the
time of the act there was no sail in sight, nor any reasonable prospect of
relief ; that under these circumstances there appeared to the prisoners
every probability that unless they then, or very soon, fed upon the boy,
or one of themselves, they would die of starvation : On a special verdict
finding these facts it was held that there was no proof of any such necessity
as could justify the prisoners in killing the boy, and that they were guilty
of murder (/).

According to Hale, a man cannot even excuse the killing of another
who is innocent, under a threat, however urgent, of losing his own life
if he does not comply ; so that if one man should assault another so
fiercely as to endanger his life, in order to compel him to kill a third person,
this would give no legal excuse for his compliance {g). But if the com-
mission of treason may be extenuated by the fear of present death, and
while the party is under actual compulsion {h), there seems to be no reason
why homicide may not also be mitigated upon the like consideration, of
human infirmity : though, where the party might have recourse to the
law for his protection from the threats used against him, his fears would
certainly furnish no excuse for committing the murder {i).

As the excuse of self-defence is founded on necessity, it can in no case
extend beyond the actual continuance of that necessity, by which alone
it is warranted (j) : for if a person assaulted falls upon the aggressor, after
the affray is over, or when he is running away, this is revenge, and not
defence {h).

night he had lodged at the house, and
some persona split open the door of the
house in order to get the prisoner out and
ill-treat him ; Bayley, J., is reported to
have saiil : ' If the prisoner had known of
the back-way, it would have been his duty
to have gone out backwards, in order to
avoid the conflict.' ' But it is submitted
that the protection of the house extends
to each and every individual dwelling in it.'
In R. V. Cooper, Cro. Car. 544, it was held
that a lodger might justify killing a per-
son endeavouring to break into the house
where he lodged with intent to commit a
felony in it; and see 1 East, P.O. 289.
289. Fost. 274; and Ford's case, Kel.
(J.) 51. Posi, p. 816. C. S. G.

(/) R. V. Dudley, 14 Q.B.D. 273. The
case was tried at the Exeter Assises, and a
special verdict returned. The Assizes
were then adjourned to the Royal Courts
of Justice. The record was brought into
court, and filed, and the arguments were

heard by the judges not as commissioners
of assize but as judges of the High Court.
The prisoners were sentenced to death by
the Court, but the sentence was commuted
by the Crown to six months' imprison-
ment. See the comments of Sir J. F.
Stephen on this case, Stephen, ' Digest Cr.
Law (6th ed.), 25. The Court considered,
but did not follow, the case cited by Bacon
of two shipwrecked persons getting on the
same plank. Bac. Elem. o. 5 ; Cf . 1 Hawk,
c. 28, s. 26. 4 Bl. Com. 186.

(?) 1 Hale, 51, 434.

(h) 1 East, P.C. 70, and the authorities
there cited.

(i) 1 East, P.C. 294. Hale says that
in the most extreme case, where there
could be no recourse to law, the person
assailed ought rather to die himself than
kill an innocent person. 1 Hale, 51.

(f) 1 East, P.C. 293.

(k) 4 Bl. Com. 293.

CHAP. I] Of Justifiable Homicide. 813

Sect. II. — Of Justifiable Homicide.

Justifiable homicide is of several kinds, as it may be occasioned by the
performance of acts required by law, or done by the permission of the
law (I).

The execution of criminals under a lawful sentence of death is an act
required by the law, and, therefore, justifiable (m). But acts not required
by law are not justifiable ; and, therefore, wantonly to kill the greatest of
malefactors, would be murder ; and all acts of official duty should, in the
nature of their execution, be in conformity with the judgment by which
they are directed (n).

Amongst the acts done by the permission of the law, for the advance-
ment of public justice, may be reckoned those of the officer, who, in the
execution of his office, either in a civil or criminal case, kills a person who
assaults and resists him. The resistance will justify the officer in
proceeding to the last extremity. So that in all cases, whether civil or
criminal, where persons having authority to arrest or imprison, and using
the proper means for that purpose, are resisted in so doing, they may
repel force with force, and need not give back; and if the party
making resistance is unavoidably killed in the struggle, this homicide is
justifiable (o). This rule is founded in reason and public utility ; for few
men would quietly submit to an arrest, if, in every case of resistance, the
party empowered to arrest were obliged to desist, and leave the business
undone ; and a case in which the officer was held guilty of manslaughter,
because he had not first given back, as far as he could, before he killed the
party who had escaped out of custody, in execution for a debt, and
resisted being retaken (p), seems to stand alone, and has been
mentioned with disapprobation (q), As to the authority of constables
and others to arrest, see ante, pp. 723 et seq. (r).

The protection above stated does not extend to sentries in the navy
or army. The prisoner was sentinel on board a ship in the Koyal Navy,
when she was paying off. The orders to him from the preceding sentinel
were, to keep off all boats, unless they had officers with uniforms in them,
or unless the officer on deck allowed them to approach ; and he received
a musket, three blank cartridges, and three balls. The boats pressed ;
upon which he called repeatedly to them to keep off ; but one of them
persisted and came close under the ship ; and he then fired at a man who
was in the boat, and killed him. The jury found that the sentinel fired

(/) Ante, p. 808. are apprehended, and who are upon

(m) Fost. '267. ' 1 Hale, 496, 4 BI. necessity slain, because they cannot other-
Corn 178 ' ^'^® '^® overtaken, it is no felony in the

In) Ante p. 765, and see 1 Hale, 501. officers or their assistants, though the

2 Hale 411 ' parties killed were innocent (2 Hale, 89,

(o) 1 Hale 494 2 Hale, 117, 118. 3 97). But it is doubtful whether nowadays

Co Inst 56 ' 1-Hawk. c. 28, ss. 17, 18, 19. so great a degree of severity would be

Vmt 270 271 4 Bl. Com. 179. 1 East, either justifiable or necessary (especially

P C B 307 ' ™ *^^ "^^ °* ^^^^ flight), unless there was

'/^\ 'i -R nil p Tien 189. a reasonable suspicion of felony. See 1

(a) Fost 271 1 Bast, P.C. 307. East, P.C. 303. B. v. Dadson, 2 Den. 35.

)r{ It has been said, that if peace The old statute 2 Ed w. III. c. 3, as to mght-

nffipprs meet with night-walkers, or per- walkers is repealed, and the right to arrest

sons unduly armed, who will not yield misdemeanants by night rests on statutes,

themselves, but resist or fly before they vide ante, pp. 729 et seq.

814

Of Homicide.

[BOOK IX.

under the mistaken impression that it was his duty. On a case
reserved, the judges were unanimous that the killing was, nevertheless,
murder ; but were of opinion, that if the act had been necessary for the
preservation of the ship, as if the deceased had been stirring up a mutiny,
the sentinel would have been justified {rr).

An officer of justice may justify the killing of a person flying from arrest
for treason or felony (s). In the case of a riot or rebellious assembly,
peace officers and their assistants, endeavouring to disperse the mob, are
justified, both at common law and by the Riot Act, in proceeding to the
last extremity, in case the riot cannot otherwise be suppressed [t). And it
has been said, that perhaps the killing of dangerous rioters may be justified
by any private persons who cannot otherwise suppress them, or defend
themselves from them, inasmuch as every private person seems to be
authorised by the law to arm himself for the preservation of the peace (m).

On an indictment for shooting, with intent to do grievous bodily harm,
it appeared that the prisoner was a constable and employed to guard a
copse, from which wood had been stolen, and for this purpose carried a
loaded gun. From this copse he saw the prosecutor come out, carrying
wood which he was stealing, and called to him to stop. The prosecutor
ran away, and the prisoner having no other means of bringing him to
justice fired, and wounded him in the leg. It was further alleged that the
prosecutor was actually committing a felony, he having been before con-
victed repeatedly of steahng wood {v) ; but these convictions were
unknown to the prisoner, nor was there any reason for supposing that he
knew the difierence between the rules of law relating to felony and those
relating to less offences. Erie, J., told the jury that shooting with intent
to wound amounted to the felony charged, unless from other facts there
was a justification ; and that neither the belief of the prisoner, that it was
his duty to fire, if he could not otherwise apprehend the prosecutor, nor
the alleged felony, it being unknown to him, constituted such justification ;
and upon a case reserved, it was held that the conviction was right ;
for the prisoner was not justified in firing, because the fact that the
prosecutor was committing a felony was unknown to him at the time {w).

Prison officers are under the same special protection as constables {x)
and other ministers of justice; and, therefore, if in the necessary discharge
of their duty they meet with resistance, whether from prisoners in civil or
criminal custody, or from others in behalf of such prisoners, they are not
obliged to retreat as far as they can with safety, but may freely, and without
retreating, repel force by force ; and the killing of the party so resisting

(rr) R. V. Thomas, 1816, MS. Bayley,
J. The prisoner was tried at Nisi Prius,
4 M. & S. 441.

(s) AntcTp.ieS.

(t) 1 Hale, 53, 494, 495. MS. Tracy, 36,
cited 1 East, P.O. 304. Vide ante, p.p 431
et seq.

{u) 1 Hawk. c. 28, s. 14, and see Fost.
272 ; Poph. 121. It was so resolved by
all the judges in Easter Term, 39 EKz.,
though they thought it more discreet for
eyery one in such a case to attend and
assist the King's officers in preserving the

peace. And certainly, if private persons
interfere to suppress a riot, they must give
notice of their intention.

(v) These previous convictions rendered
the prosecutor's act a felony under 7 & 8
Geo. IV. c. 29, s. 39, now replaced by 24
& 25 Viet. 0. 96, s. 33.

(w) R. 0. Dadson, 2 Den. 35 ; sed contra,
R. V. Bentley, 4 Cox, 406, and see The
Abby, 5 Chr. Rob. (Adm.) 254, a case of
shooting at an Englishman and killing an
alien enemy.

{x) 61 & 62 Vict. 0. 41, s. 10.

CHAP I.]

Of Justifiable Homicide.

815

the gaoler, or his o£B.cer, or any person coming in aid of him, will be
justifiable homicide («/).

H., being weary of life, and willing to be rid of it by the hand of
another, having first blamed his keeper for suffering his deer to be
destroyed, and commanded him to execute the law, came himself into his
park at night as if with the intent to steal the deer ; and being questioned
by the keeper, who knew him not, and refusing to stand or answer, he was
shot by the keeper. This was decided to be excusable homicide within
21 Edw. I. st. 2, Be malefactoribus in parcis (z).

A man is justified in repelling force by force in defence of his person,
habitation, or property, against one who manifestly intends and endea-
vours, by violence or surprise, to commit a felony upon either. In these
cases he is not obliged to retreat, but may pursue his adversary till he
finds himself out of danger ; and if, in a conflict between them, he hap-
pens to kill, such killing is justifiable (a). But the rule does not apply
to any crime unaccompanied with force, such as pocket picking (b). The
intent to murder, ravish, or commit a felony attended with force or
surprise, should be apparent, and not be left in doubt ; so that if A. makes
an attack upon B., it must plainly appear by the manner of the assault,
the weapon, &c., that the life of B. is in imminent danger ; otherwise his
killing the assailant will not be justifiable self-defence (c). There must be
an intention on the part of the person killed to rob, or murder, or to cause
some serious bodily injury to the person killing ; or the conduct of the
party must be such as to render it necessary on the part of the party
killing to do the act in self-defence (d). The rule extends only to felony ;
for if one comes to beat another, or to take his goods merely as a trespasser,
though the owner may justify assaulting him so far as to make him desist,
yet if he kills him, it is manslaughter (e). But if a house is broken open,
though in the day-time, with a felonious intent, it will be within the
rule (/). A person who was set to watch a yard or garden by his master,
was held not to be justified in shooting anyone who came into it in the
night, even if he saw him go into his master's hen-roost, and some dead
fowls and a crow-bar be found near him ; but if from the conduct of the

iy) Fost. 321. 1 Hale, 481, 496.

(z) 1 Hale, 40. By 21 Edw. I. st. 2, if
a forester, parker, or warrener, found any
trespassers wandering within his Uberty,
intending to do damage therein, who would
not yield, after hue and cry made to stand
unto the peace, but continued their malice,
and disobeying the King's peace, did flee
or defend themselves with force and arms,
if such forrester, parker, or warrener, or
their assistants, killed such offenders,
either in arresting or taking them, they
should not be troubled for the same, nor
suffer any punishment. 21 Edw. 1, st. 2,
was repealed by 7 & 8 Geo. IV. c. 27 (E)
and 9 Geo. IV. c. 53 (I). 3 & 4 Will. & M.
0. 10, was repealed by 16 Geo. III. c. 30,
and 4 & 5 Will. & M. c. 23, by 7 & 8
Geo. IV. 0. 27, and 1 & 2 Will. IV. i;. 32.
C. S. G. See ante, p. 772.

(a) Fost. 273. Kel.(J.)128, 129. IHale,

445, 481, 484, et seq. 1 Hawk. c. 28, ss. 21,
24. R. V. Bull, 9 C. & P. 22.

(6) 1 Hale, 488. 4 Bl. Com. 180. 'But
if one pick my pocket, and I cannot other-
wise take him than by killing him, this
falls under the general rule concerning the
arresting of felons.' 1 East, P.C. 273.

(d) R. V. Bull, 9 C. & P. 22, Vaughan
and Williams, JJ. See R. v. Symondson,
60 J. P. 645, ante, p. 701, note (p).

(e) 1 Hale, 485, 486. 1 Hawk. u. 28,
8. 23. Kel. (J.) 132. 1 East, P.C. p. 272.

(/) 1 East, P.C. 273. In 4 Bl. Com.
180, it is said that the rule reaches not to
the breaking open of any house in the day-
time, unless it carries with it an attempt
of robbery also. But it will apply where
the breaking is such as imports an apparent
robbery, or an intention or attempt of
robbery. 1 Hale, 488.

816 Of Homicide. [book ix.

trespasser he had fair ground to believe his own hfe in actual danger, he
would be justified in shooting him {g).

In cases of this kind it is essential to ascertain the grounds which the
slayer had for supposing that the person slain had a felonious design
against him ; more especially where it afterwards appears that no such
design existed. One L. was indicted for killing F., under the following
circumstances : — L. being in bed and asleep, his servant, who had procured
F. to help her about the work of the house, and had gone to the door
about twelve o'clock at night to let F. out, conceived that she heard
thieves about to break into the house : upon which she ran to L., and
told him of what she apprehended. L. arose immediately, took a drawn
sword, and with his wife, went downstairs ; when the servant, fearing that
her master and mistress should see F., hid her in the buttery. L. with
his sword searched the entry for thieves, when his wife spying F. in
the buttery and not knowing her, conceived her to be a thief, and cried
out to her husband in great fear, ' Here they be that would undo us ; '
when L., not knowing that it was F. in the buttery, hastily entered with
his drawn sword, and being in the dark, and thrusting before him with
his sword, thrust F. under the left breast, and gave her a mortal wound,
of which she instantly died (li). This was ruled to be misadventure.
Foster, J., appears to have thought that it would have been better ruled
manslaughter ; due circumspection not having been used {i). But in the
view of Bast (/), upon the peculiar facts and circumstances of the trans-
action, the case is more properly one of those mentioned by Hale {k),
where the ignorance of the fact excuses the party from all sort of blame.
Hawkins mentions the case as one in which the defendant might have
justified the fact under the circumstances, on the ground that it had
not the appearance even of a fault {I).

Questions sometimes arise as to what is enough to establish that the
deceased intended to commit such felony as would justify the slayer in
killing him. M. on words of anger, threw a bottle with great force at
the head of C, and immediately drew his sword, upon which C. returned
a bottle with equal violence (m) ; and it was held that this was lawful
and justifiable on the part of C, on the ground that he that has manifested
mahce against another, is not fit to be trusted with a dangerous weapon
in his hand (w). There seems to have been good reason for C. to suppose
that his Ufe was in danger : and it was probably on the same ground that
the judgment in Ford's case proceeded. F. being in possession of a
room at a tavern, several persons insisted upon having it, and turning
him out, which he refused to submit to ; thereupon they drew their swords
upon F. and his company, and F. drew his sword, and killed one of them ;
and this was adjudged justifiable homicide (o). For if several attack a

((j) R. V. Scully, 1 C. & P. 319, Gar- (h) Levet's case, Cro. Car. 538. 1 Hale,

row, B. ' 24 Hen. VIII. o. 5, by which 42, 474. (i) Fost. 299.

persons killing those who were attempting \j) 1 East, P.O. 274, 275.

to rob or murder, or commit burglary, (k) 1 Hale, 42; a,nAmde ante, p. 101.

were not to suffer any forfeiture of {;) 1 Hawk. o. 28, s. 27.

goods, &c., but to be fully acquitted, (m) Mawgridge's case, Kel. (J.) 119,

and which was referred to in the second 128, ante, p. 713.

edition of this work was repealed 9 Geo. (n) Kel. (J.) 128, 129, Holt, G.J.

IV. c. 31, in 1828.' C. S. G. (o) Ford's case, Kel. (J.) 51.

CHAP. L] Of Justifiable Homicide. 817

person at once with deadly weapons, as may be supposed to have happened
in this case, though they wait till he be upon his guard, yet it seems
(there being no compact to fight) that he would be justified in killing
any of the assailants in his own defence ; because so unequal an attack
resembles more a desire of assassination than of combat (p). But no
assault, however violent, will justify killing the assailant under the plea
of necessity, unless there be a plain manifestation of a felonious intent (q).
And it may be further observed, that a man cannot, in any case, justify
killing another by a pretence of necessity, unless he were wholly without
fault in bringing that necessity upon himself ; for, if he kills any person
in defence of an injury done by himself, he is guilty of manslaughter at
least ; as in the case where a body of people wrongfully detained a
house by force, and killed one of those who attacked it, and endeavoured
to set it on fire (r).

Foster, J., was of opinion, that upon the same principle upon which
Mawgridge's case was decided, and possibly upon the rule touching the
arrest of a person who has given a dangerous wound, the legislature, in
the case of the Marquis de Guiscard, who stabbed Mr. Harley sitting in
Council, discharged the parties who were supposed to have given the
Marquis a mortal wound from all manner of prosecution on that account,
and declared the killing to be a lawful and necessary action (s).

Where an act obviously felonious is attempted upon anyone, not only
may the party assaulted repel force by force, but his servant attending
him, or any other person present, may interpose to prevent the mischief ;
and if death ensues, the party so interposing will be justified {t).

But, in cases of mutual combats or sudden affrays, a person inter-
fering should act with much caution. Where, indeed, a person interferes
between two combatants with a view to preserve the peace, and not to
take part with either, giving due notice of his intention, and is under the
necessity of killing one of them in order to preserve his own life or that
of the other combatant, it being impossible to preserve them by other
means, such killing will be justifiable (w) ; but, in general, if there is an
affray and an actual fighting and striving between persons, and another
runs in, and takes part with one party, and kills the other, it will not be
justifialale homicide, but manslaughter («).

It should be observed, that as homicide committed in the prevention
of forcible and atrocious crimes is justifiable only upon the plea of neces-
sity, it cannot be justified, unless the necessity continues up to the time
when the party is killed. Thus, though the person upon whom a felonious

(p) 1 East, P.O. 276 ; and see 1 East, (?) 1 East, P.O. 277.

P.O. 243, where Eord's case is observed (r) 1 Hawk. u. 28, s. 22. 1 Hale, 440,

upon, and it is said that the memorandum 441.

in the margin of Kelyng to inquire of this (s) 9 Anne.c. 16, repealed in 1828 (9 Geo.

ease, and the qumre used by Foster, J., in IV. o. 31). Eoat. 275.

citing it, were probably made on the (t) 1 Hale, 481, 484, Post. 274. K. v.

ground of the reason suggested in the Eose, OMie, p. 811. In Handcock u. Baker,

margin of Kelyng for the judgment, 2 B. & P. 265, Chambre, J., said : ' It is

namely, that the killing by Mr. Ford in , lawful for a private person to do anything

defence of his own possession of the room to prevent the perpetration of a felony,

was justifiable, which, under those circum- Vide ante, pp. 727, 815.

stances, might be fairly questioned : as, («) 1 Hale, 484. 1 East, P.O. 290.

on that ground, it might have been better (v) 1 East, P.C. 291, Vide ante, pp.

ruled to be manslaughter. 427, 718.

VOL. T. ^ "^

^18

Of Homicide.

[iBOOK I2t.

attack is first made is not obliged to retreat, but may pursue the felon
till he finds himself out of danger ; yet if the felon is killed after he has
been properly secured, and when the apprehension of danger has ceased,
Such kilhng will be murder ; though perhaps, if the blood were still hbt
from the contest or pursuit, it might be held to be only manslaughter on
account of the high provocation (w);

PART V.-^Of INDICTMENTS AND EVIDEl^CiE ON TRIALS FOft
HOMICIDE, &c.

Sect. I. — ^Indictment.

fiy the Ofiences against the Person Act, 1861 (24 & 25 Vict. c. 100),
S; 6, ' In any indictment for murder or manslaughter, or for being an
accessory to any mutder or manslaughter, it shall not be necessary to set
forth the manner in which or the means by which the death of the deceased
was caused (tc) but it shall be sufficient in any indictment for murder to
charge that the defendant did feloniously, wilfully, and of his malice
aforethought, kill and murder the deceased ; and it shall be sufficient in
any indictment for manslaughter to charge that the defendant did feloni-
ously kill and slay the deceased ; and it shall be sufficient in any indictment
against any accessory to any murder or manslaughter to charge the
principal with the murder or manslaughter (as the case may be) in the
manner hereinbefore specified, and then to charge the defendant as an
accessory in the manner heretofore used and accustomed ' (y).

Where several join in a murder, both the principal in the first degree
and the principal in the second degree may be charged that they feloniously,
wilfully, and of their malice aforethought murdered the deceased (2).

A count for being accessory after the fact to murder may be joined
with a count for murder, and according to the preponderance of authority
the Court will not in such case put the prosecution to elect on which count
they Avill proceed {a).

And as 24 & 25 Vict. c. 94, s. 1 (b) has made accessories before the fact
liable to be indicted as principals, an indictment may charge an accessory
before the fact and a principal in the same manner in which two principals
may be charged. And on such an indictment it is quite immaterial which

(w) 1 East, P.C. 293. 4 Bl. Com. 185..
1 Hale, 485.

{x) This applies equally where the death
is due to a culpable omission. R. v.
Smith, 11 Cox, 210.

(y) Taken from the Criminal Procedure
Act, 1851 (14 & 15 Vict. c. 100), s. 4,
which applied only to indictments for
murder or manslaughter. A serious
doubt was entertained whether in an in-
dictment against an accessory to murder
or manslaughter, where the accessory was
charged as an accessory and not as a
principal, it might not still be necessary
to adopt the old form of indictment, and
in order to render that course unneces-
sary, the new parts of this section were
introduced. S. 6 renders it unnecessary
to refer to the old decisions as to the

sufficiency of indictments for homicide.

The word ' indictment ' includes a
coroner's inquisition whereby any person
is charged with murder or manslaughter,
or as an accessory before the fact to either
of those offences. R. v. Ingham, 33 L. J.
Q.B. 183 ; 9 Cox, 508 ; post, p. 821. See
R. V. Q. W. Ry. Co., 3 Q.B. 333. R. v.
King, 2 Cox, 95. 2 Co. Inst. 32, 550. 4
Co. Inst. 271.

(2) This gets rid of the difficulties of
pleading which existed at common law.

(o) 24 &'25 Vict. c. 94, s. 6, ante, p. 131
R. V. Blackson, 8 C. &P.'43, Parke, B., and
Patteson, J. R. v. Tuffin, 12 July 1903
Darling, J. 19T.L.R.640. InR.u.Bran-
non, 14 Cox, 394, Cookburn, J., required
the prosecution to elect in such a case

(6) Ante, p. 130.

CHAP. 1.]

Indictment.

819

of the prisoners was principal in the first degree in the one case, or whether
the party were accessory before the fact or a principal in the other case,
and consequently the jury will be relieved from considering these
questions (c).

Names. — Where the name of the person killed is known it should be
correctly stated in the indictment : but errors and mis-descriptions can
be amended. In the case of an infant or of an unknown person the proper
description is a certain infant (male or female) child not named {d), or a
certain person whose name is to the jurors unknown (e).

Time and Place. — It would seem to be unnecessary for the indict-
ment to contain allegations of time and place (/). If a time is laid it
would seem that the date of the striking the blow should be given. If
from the evidence it appears that the deceased died more than a year and
a day from this date the prisoner will be entitled to be acquitted of
homicide {g) and in this sense no doubt the date is material.

Venue. — At common law murder, like all other offences, must be
inquired of in the county in which it was committed. It appears, however,
to have been a matter of doubt whether, when a man died in one county
of a stroke received in another, the offence could be considered as having
been completely committed in either county Qi).

By 2 & 3 Edw. VI. c. 24, s. 2 it was enacted, that the trial should be
in the county where the death happened. That enactment was repealed
in 1826 (7 Geo. IV., c. 64, s. 32) but under ss. 12, 13, of the repealing
Act (t) the prosecution may take place either in the county where the
injury was given or in that in which the death took place. The venue,
as stated in the margin of the indictment, is a sufficient allegation of
the place {j).

In R. V. Bexley [k) the prisoner was indicted at the Central Criminal
Court for the murder of her child aged eight weeks. She was seen one
afternoon at Willesden, within the jurisdiction of the Central Criminal
Court, and she there had the child with her and said she was going to see
her parents in Suffolk. She arrived that night at a house in Suffolk,
outside the jurisdiction of the Central Criminal Court ; she there had a
parcel with her, but apparently no child. She returned next day to

(d) R. V. Waters, 1 Den. 356 ; 2 C. &
K, 864.

(e) E. V. Stroud, 2 Mood. 270 ; 1 C. &
K. 187. See R. v. Campbell, 1 C. & K. 82,
where the description of a deceased woman
as of a name unknown was quashed on the
ground that there was evidence that she
was the wife of the prisoner. In R. v.
Hicks, 2 M. & Rob. 302, Coleridge, C.J.,
andMaule, J., an indictment for murder
was held bad, because it neither named
the child nor stated that its name was
unknown, it was held that the prisoner
could not be convicted of endeavouring to
conceal the birth of the child ; for the
indictment being bad for its professed
purpose was bad altogether. This deci-
sion is right in principle, but the indict-

ment if defective could now be amended
under 14 & 15 Vict. c. 100, s. 1, fost,
Vol. ii. p. 1972 et seq.

(/) See 14 & 15 Vict. c. 100, ss. 1, 24,
post, Vol. ii. p. 1935.

ig) 2 Hawk. c. 25, s. 77. R. v. Dyson
[1908] 2 K.B. 454 (C. C. A.).

(h) 1 Hawk. c. 25, s. 36. 1 East, P.O.
361.

(J) Ante, p. 19 ; Cf. R. v. Ellis [1899],
1 Q.B. 320.

(j) 14 & 15 Vict. c. 100, s. 23, post,
Vol. ii. p. 1937. See R. v. Riley or
Ripley, 17 Cox, 120.

(k) [1906] 70 J. P. 264, Grantham, J.
As to the payment of the costs of the
prosecution where the injury is given in
one place and the death takes place in
another, see R. v. Brown, 62 J. P. 521, and
post. Vol. ii. p. 2039 et seq.

3g2

820

Of Homicide.

[BOOK IX,

Willesden, taking the parcel with her. The parcel on being opened at
Willesden was found to contain the dead body of the child. It was
objected that there was no evidence that the death of the child took
place within the jurisdiction of the Court, but Grantham, J., held that as
the child was last seen alive within the jurisdiction and that the dead body
was found within the jurisdiction in the prisoner's custody,' the inference
might be drawn that the murder was committed within the jurisdiction.

As to the trial of homicide committed abroad or in the^Admiralty
jurisdiction, vide ante, pp. 27, 32.

Describing Offence. — In an indictment for murder it has always been
necessary to state that the act by which the death was occasioned was
done feloniously, and of malice aforethought (I), and it must also be stated,
that the prisoner murdered the deceased (m). If the averment respecting
malice aforethought is omitted, and the indictment only alleges that the
stroke was given feloniously, or that the prisoner murdered, &c., or hilled,
or slew the deceased, the conviction can only be for manslaughter (n).

Where the grand jury return the biU of indictment only a true biU
for manslaughter, and ignoramus as to murder, it is stated to have been
the usual course to strike out, in the presence of the grand jury, the words,
' maliciously ' and ' of mahce aforethought,' and ' murder,' and to leave
only so much as makes the biU to be one for manslaughter (o) ; but it has
been thought to be safer to present a new biU to the grand jury for
manslaughter (p). And a learned judge has ordered this to be done
where the grand jury have returned manslaughter upon a bill for murder,
saying he thought it the better course to prefer a new bUl, although the
usual course on the circuit had been to alter the bill for murder, on the
finding of the grand jury (q). Though the same indictment may charge
one with murder and another with manslaughter, yet if it charges both
with murder, the grand jury cannot find it a true bill against one, and
manslaughter as to the other ; but a finding against one for murder wiU
be good, and there ought to be a new bill against the other for man-
slaughter (r). And where the grand jury returned a true bill for murder
against one, and for manslaughter against another, the one was tried for
murder on that indictment, but a new bill for manslaughter was preferred
against the other (s).

If, as is very commonly the case, there be an indictment for murder,
and a coroner's inquisition for the same offence against the same person,
at the same sessions of gaol deUvery, the usual practice is to arraign and
try the prisoner upon both, in order to avoid the plea of autrefois acquit
or convict ; and to endorse his acquittal or conviction upon both
presentments {t).

(I) 2 Hale, 186, 187. Staundf. 130.
Bradley v. Banks, Yelv. 204. Vide ante,
p. 655.

(m) 2 Hawk. c. 23, s. 77. Anon. Dy.
304.

{%) 1 East, P.O. 345, 346. 2 Hale, 186.

(o) 2 Hale, 162.

(p) By Hale (2 H., P.O. 162), on the
ground that the words of the endorsement
do not make the Indictment, but only evi-
dence the assent or dissent of the grand

jury, and that the bill itself is in the in-
dictment when affirmed. See R. v. Ford,
Yelv. 99.

(q) R. V. Turner, 1 Lew. 176, Parke, B.

(r) 1 East, P.O. 347.

(a) R. V. Bubb, 4 Cox, 455, ante, p. 671,
after consultation between Wilhams, J.,
Lord Campbell, C.J., and Mr. Greaves'
Q.C. SeeR.w.Cary,3Bulst.206. 1 Rollo
R. 407, as R. v. Carew" C. S. G.

(t) 1 East, P.O. 371.

CHAP. I.] Coroner's Inquisition. 821

And where the coroner's jury have found a verdict of manslaughter,
and the grand jury a bill for murder, the prisoner has been arraigned and
tried on both the inquisition and indictment at the same time (m). So
where the grand jury have found a bill for manslaughter, and the
coroner's jury a verdict of wilful murder {v). So where the grand jury
have found a bill against more prisoners for murder than the coroner's
jury (w).

Sect. II. — Coroner's Inquisition.

Coroner's Inquisition. — By the Coroners Act, 1887 (50 & 51 Vict. c.
71), s. 3 (1), ' Where a coroner is informed that the dead body of a person
is lying within his jurisdiction, and there is reasonable cause to suspect
that such person has died either a violent or an unnatural death, or has
died a sudden death of which the cause is unknown, or that such person
has died in prison or in such place or under such circumstances as to require
an inquest in pursuance of any Act {x), the coroner, whether the cause of
death arose within his jurisdiction or not, shall, as soon as practicable,
issue his warrant for summoning not less than twelve nor more than
twenty-three good and lawful men to appear before him at a specified
time and place, there to inquire as jurors into the death of such person
as aforesaid.'

By sect. 4 (2), ' It shall be the duty of the coroner in a case of murder
or manslaughter to put into writing the statement on oath of those who
know the facts and circumstances of the case, or so much of such state-
ment as is material, and any such deposition shall be signed by the witness
and also by the coroner.'

By sect. 4 (3), 'After viewing the body and hearing the evidence the
jury shall give theirverdict andcertifyit byan inquisition in writing, setting
forth . . . who the deceased was, and how and where the deceased came
by his death, and if he came by his death by murder or manslaughter,
the persons, if any, whom the jury find to have been guilty of such murder
or manslaughter, or of being accessories before the fact to such murder {y).

i.u) R. V. Walters, Hereford Sum. Ass. Ingliain, 5 B. & S. 257. See anU, p.

1841, Coltman, J. MSS. C. S. G. R. v. 818. Althougli the prisoner may be

Powell, Hereford Sum. Asa. Erskine, J. charged with murder or manslaughter by

MSS. C. S. G. See R. v. Harding, 1 Cr. the inquisition of the coroner, it is usual

App R 219 also to prefer an indictment against him.

iv) R. V. Smith, 8 C. & P. 160. Bosan- By 50 & 51 Vict. o. 71, s. 20, if in the

Quet and Coltman, JJ., and BoUand, B. opinion of the Court having cogmzance of

iw) R. V. Dwyers, Gloucester Sum. Ass. the case, an inquisition hnds sufficiently

842, Erskine, J., MSS. C. S. G. the matters required to be found thereby,

(x) Itis a misdemeanor to burn or other- and, where it charges a person with murder

wise dispose of a dead body, upon which or manslaughter, sufficiently designates

an inquest ought to be held, with intent that person and the offence charged, it

to prevent the coroner holding an inquest ; shall not be quashed for any defects, but

R j; Price 12 Q.B.D. 247, Stephen, J. may be amended by the proper officer of

And see R 'v. Stephenson, 13 Q.B.D. 331 the Court. The jurisdiction of the King s

/r f R 1 R f. Byers, 71 J. P. 205, Bench Divison to quash an mquisition for

^" r \ ' ' irregularity on the face of it is left un-

^^^^The inauisition must be under the touched by this section. R. v. G. W. Ry.

hands and ^the case of murder or man- Directors, 20 Q.B.D. 410 ; 16 Cox, 410.

fwhter under the seals of the jurors If particulars are set out professing to

wvin concur (s 18 (1)). Such an inqui- show facts justifying the verdict the m-

sition amounts to an indictment, R. v. quisition may be quashed if they are

822 Of Homicide. [bookix.

By sect. 4 (5), ' In case twelve at least of the jury do not agree on a
verdict the coroner may adjourn "the inquest to the next sessions of oyer
and terminer or gaol delivery held for the county or place in which such
inquest is held, and if, after the jury have heard the charge of the judge or
commissioner holding such sessions, twelve of them fail to agree on a
verdict, the jury may be discharged by such judge or commissioner
without giving a verdict.'

By sect. 6, power is given to the High Court of Justice, on appli-
cation by or under the authority of the Attorney-General, to order an
inquest to be held if the coroner refuses or neglects to hold one, or
where it is necessary in the interests of justice that another inquest
should be held.

By sect. 7 (1), ' The coroner only within whose jurisdiction the body
of a person upon whose death an inquest ought to be holden is Ijang shall
hold the inquest, and where a body is found dead in the sea or any creek,
river, or navigable canal within the flowing of the sea, where there is no
deputy coroner for the jurisdiction of the Admiralty of England, the
inquest shall be held only by the coroner having jurisdiction in the place
where the body is first brought to land.

(2). ' In a borough with a separate Court of quarter sessions, no coroner,
save as is otherwise provided by this Act, shall hold an inquest belonging
to the office of coroner except the coroner of the borough or a coroner or
deputy coroner for the jurisdiction of the Admiralty of England.'

By subsect. 3, in a borough having no separate Court of quarter
sessions, only the county coroner or the coroner or deputy coroner for
the jurisdiction of the Admiralty shall hold an inquest.

By sect. 40 (1), ' For the purpose of holding coroners' inquests, every
detached part of a county shall be deemed to be within the county by
which it is wholly surrounded, or where it is partly surrounded by two or
more counties, within the county with which it has the longest common
boundary.'

Sect. III. — Evidence.

The evidence, in cases of murder, will consist of the proof of the parti-
cular facts and circumstances which shew the killing, and that it was
committed by the party accused of malice aforethought. It should be
observed, however, that when the fact of killing is proved, all the circum-
stances of accident, necessity, or infirmity, are to be satisfactorily shewn
by the prisoner, unless they arise out of the evidence produced against
him ; for the law presumes the fact to have been founded in malice until
the contrary appears (z).

Corpus delicti.— It has been considered a rule, that no person should
be convicted of murder unless the body of the deceased has been found ;
and Hale says, ' I would never convict any person of murder or man-
slaughter, unless the fact were proved to be done, or at least the body
be found dead ' (a). But this rule or caution must be taken with some

insufficient in law to constitute the offence (a) 2 Hale, 290. This is only a caution,

found. R. V. Clerk of Assize of Oxford not a rule for erery case. R. v. Burton,

Qrcuit [1897], 1 Q.B. 370. Dears. 282, Maule, J. R. v. Kersey, 1

(z) Fost. 255. Ante, p. 657. Cr. App. R. 260.

CHAP I.]

Evidence,

823

qualifications ; and circumstances may be sufficiently strong to shew the
fact of the murder, though the body has never been found, Thus, where
the prisoner, a mariner, was indicted for the murder of his captain at sea,
and a witness stated that the prisoner bad proposed to kill the captain,
and that the witness being afterwards alarmed in the night by a violent
noise, went upon deck, and there observed the prisoner take the captain
up and throw him overboard into the sea, and that he was not seen or
heard of afterwards ; and that near the place on the deck where the
captain was seen, a billet of wood was found, and that the deck and part
of the prisoner's dress were stained with blood ; the Court, though they
admitted the general rule of law, left it to the jury to say, upon the
evidence, whether the deceased was not killed before his body was cast
into the sea ; and the jury being of that opinion, the prisoner was coU'
victed, and (the conviction being unanimously approved by the judges)
was afterwards executed (b).

And where the mate of a ship was seen to seize the captain from
behind, and throw him into the sea, and the captain fell striking a boat,
and leaving marks of blood upon it, but was never seen again, Archibald,
J., allowed the case to go to the jury, and the prisoner was convicted of
manslaughter (c).

But where upon a indictment against the prisoner for the murder of
her bastard child, it appeared that she was seen, with the child in her
arms, on the road from the place where she had been at service to the
place where her father lived, about six in the evening, and between
eight and nine she arrived at her father's, without the child, and the
body of a child was found in a tide-river, near which she must have
passed in her road to her father's, but the body could not be
identified as that of the child of the prisoner, and the evidence rather
tended to shew that it was not the body of such a child ; it was
held that she was entitled to be acquitted ; the evidence rendered it
probable that the child found was not the child of the prisoner ; and
with respect to the child, which was really her child, the prisoner could
not by law be called upon either to account for it, or to say where it was,
unless there were evidence to shew that her child was actually dead (d).

The true principle seems to be that the rule is properly applicable
only in cases where it is sought to presume death from the disappearance
of the person said to be deceased (e).

(6) R. V. Hindmarsh, 2 Leach, 569. It
was argued at the trial that the prisoner
was entitled to be acquitted, on the ground
that it was not proved that the captain
was dead ; and that as there were many
ships and vessels near the place where the
transaction was alleged to have taken
place, the probability was that he was
taken up by some of them, and was then
alive. And counsel mentioned a case
before Gould, J., in which the mother and
reputed father of a bastard child were
observed to take the child to the margin of
the dock at Liverpool, and after stripping
it, cast it into the dock. The body of the
ip^ant was, not afterwards seen ; and as

the tide of the sea flowed and reflowed into
and out of the dock, the learned judge,
upon the trial of the father and mother for
the murder of their child, observed that it
was possible the tide might have carried
out the living infant ; and upon this
ground the jury, by his direction, acquitted
the prisoners. But qu. the form of the
indictment in this case.

(d) R. V. Hopkins, 8 C. & P. 591.
Abinger, C.B. R. v. Cheverton, 2 F. & F.
833, Erie, C.J. R. v. Perry, U St. Tr.
1312.

(e) See Upington, v. Solomon, 9 Buch-
anan (Cape, S.C), 240, 276, de VilUers,

824 Of Homicide. [book ix.

A question has sometimes been raised whether a prisoner can be
convicted of murder where it is impossible for any evidence to be given
of the cause of death, in consequence of the state in which the body was
found, but it would seem that it is a question for the jury, taking all
the circumstances into consideration, whether the death was caused by
violence or not, and whether that violence was the act of the prisoner (/).

On a trial for murder, in order to prove the state of the health of the
deceased prior to the day of his death, a witness was asked in what state
of health the deceased seemed to be when he last saw him, and he began
to state a conversation which had then taken place between the deceased
and himself on this subject. Alderson, B., held that what the deceased
said to the witness was reasonable evidence to prove his state of health
at the time (gr).

Upon an indictment for murder by the explosion of certain grenades,
a novel kind of explosive instrument, evidence of other deaths and woimds
caused by the explosion at the same time and place was held admissible
for the purpose of proving the character of the grenades [h). Where in
the same case a witness was called to prove that he made the grenades,
it was held that the name of the person who gave the order for them
might be proved, as a fact in the transaction, even though he had not
then been shewn to be connected with the prisoner (t).

It has already been shewn that if A. is indicted as having given the
mortal stroke, and B. and C. as present aiding and assisting, and upon
the evidence it appeared that B. gave the stroke, and A. and C. were
aiding and assisting, or it be not proved which gave the stroke, the charge
is proved, for in law it is the stroke of all {j). So if a prisoner is indicted
for strangling the deceased with her own hands, and upon the evidence
it turns out that the deceased was strangled by someone else in the
presence of the prisoner, who was privy to it, and so near as to be able
to assist, that is sufficient {k).

An indictment for murder, stating that the prisoner gave and adminis-
tered poison, is supported by proof that the prisoner gave the poison to
A. to administer as a medicine to the deceased, and that A. neglecting to
do so, it was accidentally given to the deceased by a child, the prisoner's
intention to murder continuing. Upon an indictment for murder, which
alleged that the prisoner feloniously, &c., did administer a large quantity
of laudanum to a child, it appeared that the prisoner delivered to one S.,
with whom the child was at nurse, about an ounce of laudanum, telling
her that it was proper medicine for the child, and directing her to ad-
minister to the child every night a tea-spoonful thereof, which was quite
a sufficient quantity to kill the child ; the prisoner's intention in so doing,
as shewn by the finding of the jury, was to kill the child. S. took home

C.J. Of. B. 0. King, 9 Canada Crim. Gas. the principals effected, just as in a case of

436. R. V. Kenniff [1903], Queensland arson, if one rick is set fire to and several

State Rep. 17. others burnt, evidence of all is always

(/) R. V. Macrae, Northampton Winter admitted.
Assizes, Dec. 23, 1892, Kennedy, J. (i) Ibid. 8 St. Tr. (N. S.) 926.

(g) R. V. Johnson, 2 C. & K. 354. (j) Ante, pp. 114, 759. 1 Hale, 463.

{h) B. V. Bernard, 8 St. Tr. (N. S.), 887, (k) R. v. Culkin, 5 C. & P. 121, Park, J.,

922. But surely the evidence was ad- Parke and BoUand, BB,
missible as proof of what the single act of

CHAP i.i Evidence. 825

the laudanum, and thinking the child did not require medicine, did not
intend to administer it all, and left it on the mantel-piece of her room
A few days afterwards a little boy of S., during her accidental absence,
removed the laudanum from its place and administered a much larger
dose than a tea-spoonful to the child, in consequence of which the child
died. The jury were directed that if the prisoner delivered the laudanum
to S. with intent that she should administer it to the child, and thereby
produce its death, the quantity so directed to be administered being
sufficient to cause death ; and that, if the laudanum was afterwards
administered by an unconscious agent, while the prisoner's original in-
tention continued, the death of the child, under such circumstances, was
murder by the prisoner, and that if the tea-spoonful was sufficient to
produce death, the administration of a much larger quantity by the little
boy would make no difference. The jury found the prisoner guilty, and,
upon a case reserved for the opinion of the judges, whether the facts above
stated constituted an administering of the poison by the prisoner to the
child, they were unanimously of opinion that the administering of the
poison by the child was, under the circumstances of the case, as much, in
point of law, an administering by the prisoner, as if she had actually
administered it with her own hand (I).

Upon an indictment, alleging that the prisoner did an act which
caused the death, it is sufficient to prove that the prisoner caused and
procured the act to be done by an innocent agent. An indictment charged
that the prisoner feloniously did place and fix upon the head of the
deceased a certain plaster made by the prisoner of certain dangerous
ingredients. The prisoner was proved to have applied two plasters
to the head of the deceased, but a third, which was the last applied
before the deceased died, was applied by the child's mother, in the
absence of the prisoner, it being made with materials which had been
given by the prisoner to the mother for that purpose ; it was objected
that the indictment was not proved ; but it was held that, though
indictments often go on to say that the prisoner ' caused and procured '
the thing to be done, yet if .the plaster was made by the direction of the
prisoner, that was enough (m).

One important species of evidence occasionally resorted to in cases
of homicide, namely, the dying declaration of the party killed, is dealt
with post tit. ' Evidence,' Vol. ii. p. 2084.

Where the facts of the case amount only to excusable homicide, it is
usual for the judge to direct a general verdict of acquittal, unless some
criminal culpability appears to attach to the conduct of the party (n).
And several persons present at a homicide may be found guilty in different
degrees, one of murder, the other only of manslaughter (o).

In every case where the point turns upon the question whether the
homicide was committed wilfully and mahciously, or under justifying,

(I) R. V. Michael, 2 Mood. 120 ; 9 C. & E. «. Saunders, Plowd. 473; 75 E. R. 706 ;

P. 366. ' If A. gives poison to B., in- Dalt. c. 93 ; but B., because ignorant, is

tending to poison him, and B., ignorant of not guilty.' 1 Hale, 431. Vide ante, -p. lOi.

it, gives it to C, a child, or other near (m) R. v. Spiller, 5 C. & P. 333, Bol

relation of A., against whom he never land, B., and Bosanquet, J.

meant harm, and C. takes it and dies, this (n) Fost. 279, 289, and ante, pp. 808-812.

is murder in A,, and a poisoning by him. (o) Ante, p. 114.

826

Of Homicide.

[BOOK IX.

excusing, or alleviating circumstances, the matter of fact, namely,
whether the facts alleged hy way of justification, excuse, or alleviation, are
true is the proper and only province of the jury. But whether, upon a
supposition of the truths of the facts, such homicide be justified, excused,
or alleviated, must be submitted to the judgment of the Court ; for the
construction which the law puts upon facts stated and agreed, or found by
a jury, is in this, as in all other cases, undoubtedly the proper province of
the Court {f). In cases of doubt and real difficulty, the jury may be
directed to state facts and circumstances in a special verdict (q).
But where the law is clear, the jury, under the direction of the Court in
point of law, matters of fact being still left to their determination, may
find a general verdict, conformably to such direction (r). On a trial for
murder, if the jury cannot agree, the presiding judge may discharge them
and the prisoner may be tried again at the same or later assizes (s).
Where it is deemed inexpedient or unjust to retry the prisoner, a nolle
prosequi may be entered by the Attorney-General and the prisoner
released without requiring him to be re-arraigned (t).

Sect, IV. — Convictions of Offences not Specifically Charged.

A person may be convicted of manslaughter on an indictment for
murder (u), And where the indictment is for the murder of a newly-born
child the defendant may be acquitted of the murder and convicted of
concealment of birth (v),

A person indicted as accessory after the fact to murder, may be
convicted as accessory after the fact to manslaughter, if the offence of
the principal turns out to be manslaughter (w). Either assisting the party
to conceal the death, or in any way enabling him to evade the pursuit
of justice, will render a party who knows the offence to have been
committed, an accessory after the fact (w). A conviction as accessory
after the fact to homicide upon an indictment as a principal, or as an
accessory before the fact is bad (x).

On an indictment for the manslaughter of a person under 16 by a
person over 16 who had the custody, care, or charge of the deceased, the
jury may acquit of manslaughter and convict of cruelty (?/).

It has not been determined whether under 14 & 15 Vict. c. 100, s. 9 (z).

(p) See R. V. Foster, 8 C. & P. 182.

(q) e.g. in R, v. Dudley, 14 Q.B.D. 273,
where the question raised was whether
homicide and cannibalism were excusable
by necessity.

(r) Fost. 255, 256. See R. v. Smith,
anie, p. 765, where the Court refused to
receive a verdic't. R. v. Slaughterford,
18 St. Tr. 326 : 2 Str. 1204.

(s) Winsor v. R., L. R. 1 Q.B. 289.

(t) R. V. M'Guire, Times, June 29, 1908,
43 L.J. (Newsp.) p. 423. 1 Chit. Cr. L. 479.

(tt) R. V. Mackalley, 9 Co. Rep. 67 b.
R. V. Greenwood, 7 Cox, 404. The cases
of R. V. Chatburn, 1 Mood. 403. R. v.
Rushworth, 1 Mood. 404, and R. v. Berry.
1 M. & Rob. 463, Parke, B., merely decide

that it made no difference that the indict-
ment for murder did not contain the
now immaterial conclusion contra formam
stahdi.

(v) 24 & 25 Viet. c. 100, s. 60, nnie,
p. 773.

[w) R. V. Greenaore, 8 C. & P. 35.
Tindal, C.J., Coleridge and Coltman, J J.

{x) Richards v. R., 61 J.P. 389, and
see R. V. Bubb, 70 J.P. 143 (C. C. R.).

{y) 8 Edw. VII. c. 67, s. 12 (4). See R.
V. Dyson [1908], 2 K.B. 454, a decision on
the corresponding enactment, 4 Edw. VII.
0. 15, s. 1 (rep.) : and R. v. Petch, 2 Cr.
App. R. 71 : 25 T. L. R. 401.

{z) Post, Vol. ii. p. 1967.

CHAP I.] Convictions of Offences not Specifically Charged. 827

a person indicted for murder might be convicted of an attempt to
murder, e.g. where the death was after a year and a day from the felon-
ious act, or was due to some other cause than the felonious act. In one
case it was ruled that a previous acquittal of murder was no bar to an
indictment for attempting to commit murder on the ground that 14 & 15
Vict. c. 100, s. 9, appHes only to an attempt which is a misdemeanor (a).
But this case is of doubtful authority (6).

(a) R. V. Connell, 6 Cox, 178, Williams (6) See R. v. Cook [1899], 20 N. S. W.

and Talfourd, JJ. Rep. Law, 264.

( 828a )

CANADIAN NOTES.

OF HOMICIDE.

Sec. 1. — Of, Murder and Felo De Se.

Homicide, Definition of. — Code sec. 250.

Homicide, What is not. — Code sec. 253.

Homicide, Consent to. — Code sec. 67.

When Child Becomes a Human Being, — Code see. 251.

Homicide, When Culpahle. — Code see. 252.

Murder, Definition of. — Code sec. 259.

Murder in Certain Cases. — Code see. 260.

Punishment for Murder. — Code sec. 263.

(See notes to ch. VII. on the Execution of Sentences.)

Sec. 2.~Felo De Se.

Aiding and Counselling. — Code sec. 269.
Attempt to Commit Suicide. — Code sec. 270.

Sec. 3. — The Party Killing and the Party Killed.

Criminal Liability of Corporation. — ^A corporation is not subject
to indictment upon a charge of any crime the essence of which is
either personal criminal intent or such a degree of negligence ,as
amounts to a wilful incurring of the risk of causing injury to others.
R. V. Great "West Laundry Co. (1900), 3 Can. Cr. Cas. 514 (Man.).
Sections 247 and 252, as to want of care in the maintenance of dan-
gerous things, do not extend the criminal responsibility of corpora-
tions beyond what it was at common law. Ibid.

Although a corporation cannot be guilty of manslaughter, it may
be indicted under Code sec. 222 and possibly also under sec. 284,
for having caused grievous bodily injiu-y by omitting to maintain in
a safe condition a bridge or structure which it was its duty to so
maintain, and this notwithstanding that death ensued at once to the
person sustaining the grievous bodily injury. R. v. Union Colliery
Co. (1900), 3 Can. Cr. Cas. 523 (B.C.), affirmed, 4 Can. Cr. Cas. 400,
31 Can. S.C.R. 81.

Under sec. 247 a corporation may be indicted for omitting, without
lawful excuse, to perform the duty of avoiding danger to human
life from anything in its charge or under its control. The fact

828& Homicide. [book ix.

that the consequence of the omission to perform such duty might have
justified an indictment for manslaughter in the case of an individual
is not a ground for quashing the indictment. Union Colliery Co. v.
R. (1900), 4 Can. Cr. Cas. 400, 31 Can. S.C.R. 81.

As the Criminal Code provides no punishment for the offence as
against a corporation, the common law punishment of a fine may be
imposed on a corporation indicted under it. IMd.

The manager of a corporation is not criminally liable as for wil-
ful disobedience of a statute under Code sec. 164 in respect of the
corporation's neglect not due to any active participation on his
part, to perform a statutory duty imposed upon it. R. v. Hays (1907),
12 Can. Cr. Cas. 423.

There are offences such as assaults which it is physically impossible
for a corporation to commit, but for such offences as they can commit,
whether of misfeasance or malfeasance, and for which the prescribed
punishment is one which they can be made to endure, they .are as
amenable to the criminal law as are natural persons. R. v. Central
Supply Association (1907), 12 Can. Cr. Cas. 371.

"If it were the fact that the Board of Directors or the general
manager of the defendants' company, or anyone responsible directly
•or indirectly for the system carried on in the transportation of ex-
plosives, resided within the jurisdiction of this Court, I should have
recommended their being indicted as well as the company. It is right
and just that employees of whatever grade shall be placed upon trial
when any negligence of theirs caused wounds or death, and the
higher officers through whom a defective system is put on or kept in
operation should not escape. ' ' Per Riddell, J. R. v. Michigan Central
Ry. (1907).

In Ex parte Brydges (1874), 18 Lower Canada Jurist 141, the
application was upon the return of rules nisi to quash a coroner's
inquisition (which then had an effect similar to an indictment) and
for the discharge of Mr. Brydges' recognizance,' under the following
circumstances : — ^A man named Cauehon had been killed by a G.T.R.
train at a level crossing. Mr. Brydges was the managing director
of the railroad and on complaints made that the crossing was particu-
larly dangerous, had admitted the fact and promised the Attorney-
General that he would have a watchman placed there. He did not
place a watchman as promised and the fatality to Cauehon resulted.
The finding of the coroner's jury was quashed because it was insuffi-
cient in form and did not sufficiently charge a criminal offence.

The Party Killed.

When a Child Becomes a Human Being. — Code see. 251.
Killing an Unborn Child. — Code sec. 306.

CHAP. I.J The Party Killed. 828c

Where the accused, a member of a tribe of pagan Indians, killed
that which he believed was an evil spirit, called a Wendigo, embodied
in human flesh, but which was in fact his own foster-father, the trial
Judge directed the jury that " as a matter of law there is here no justi-
fication for the killing, and culpable homicide without justification is
manslaughter." The jury found the prisoner guilty of manslaughter,
and a cause was reserved for the consideration of the Court of Appeal,
which said: "Upon the case reserved, if there was evidence upon
which the jury covld find the prisoner guilty of manslaughter it is
not upon us to reverse that finding, and the question we have to decide
is whether there was such evidence. "We think there was, and there-
fore do not see how we can say that the prisoner was not properly
convicted of manslaughter." Machekequonabe v. The Queen, 2 Can.
Cr. Cas. 140.

Sec. 4. — Of the Means of Killing and of Causing Death by Malicious
and Intentional Neglect of Duty.

Acceleration of Death. — Code sec. 258.

Neglect of Duty.
Duty of Persons.

(ffl) In charge of another to provide necessaries of life. Code

sec. 241.
(6) In charge of family to provide necessaries. Code sec. 242.

(d) Undertaking acts dangerous to life. Code sec. 246.

(e) To avoid omissions dangerous to life. Code sec. 248.
(/) In charge of dangerous things. Code sec. 247.

(g) Act or omission accelerating death. Code sec. 256.
(h) Neglect of proper means. Code sec. 257.

Medical Aid.

A person who engages the services of a child under sixteen years,
placed out with him by his legal guardian under a contract for the
child's services for a fixed period, whereby the party with whom he
is placed engages to furnish the child with board, lodging, clothing,
and necessaries, is not as to such child a "guardian or head of a,
family" so as to become criminally responsible as such, under sec.
242 for omitting to provide "necessaries" to such child while a mem-
ber of his household. The relationship in such case is that of master
and servant, and comes within the provisions of sec. 243, under which-

828d Homicide. [book ix.

the master is criminally responsible only in respect of a failure to
provide "necessary food, clothing or lodging." R. v. Coventry, 3
Can. Cr. Cas. 541. Sec. 243 of the Code does not impose a criminal
responsibility upon the master to provide the servant with medical
attendance or medicine.

Medical attendance and remedies are necessaries within the
meaning of Code sees. 241 and 242 and also at common law, and
anyone legally liable to supply such is criminally responsible for
neglect to do so. R. v. Brooks (1902), 5 Can. Cr. Cas. 372, 9 B.C.R.
13; R. V. Lewis (1903), 7 Can. Cr. Cas. 261, 6 O.L.R. 132. Con-
scientious belief that it is against the teaching of the Bible and there-
fore wrong to have recourse to medical attendance and remedies is
no excuse. Ibid.

If a person having the care and custody of another who is helpless,
neglects to supply him with the necessaries of life and thereby causes
or accelerates his death he was guilty of a criminal offence even
before the statute. R. v. Nasmith (1877), 42 U.C.Q.B. 242. But
if a person over the age of sixteen (see sec. 243) and having the exer-
cise of free will, chooses to stay in a service where bad food and lodg-
ing are provided and death is thereby caused, the master is not crimin-
ally liable.

By Influence of Mind. — Code sec. 255.

By Want of Medical or Surgical Skill.

A woman practising "Christian Science" and not called in as a
•medical attendant was held not guilty of manslaughter where the
only treatment by her was to sit silently by the patient, a child ill
of diphtheria, although the child's life might have been saved or
prolonged had proper medical aid been called in. R. v. Beer, 32
■C.L.J. 416. But the aiding and abetting the person charged with
the duty of providing necessaries is punishable in like manner as the
principal offence. See Code see. 69. R. v. Brooks (1902), 5 Can. Cr.
Cas. 372, 9 B.C.R. 13 ; R. v. Lewis (1903), 7 Can. Cr. Cas. 261, 6 O.L.R.
132.

By Perjury. — Code sec. 174(2).

By Infection.—The theory of the defence in an indictment for
murder, was that the death was caused by the communication of small-
pox virus by Dr. M., who attended the deceased, and one of the wit-
nesses for the defence explained how the contagion could be guarded
against. Dr. M. had not in his examination in chief or cross-examina-
tion been asked anything on this subject ; it was held that he was pro-
perly allowed to be called in reply, to state that precautions had been
-taken by him to guard against the infection. R. v. Sparham and
Oreaves, 25 U.C.C.P. 143.

CHAP. I.] Time of Death. 828e

By Rape. — A practising physician who kept an hospital for the
sick, on three successive days forced the person of B. a patient then
imder his control in such hospital, she being in a condition of health
that rendered sexual intercourse dangerous even with her consent.
B. died on the sixth day after the last occasion on which she had been
ravished, and her death was hastened if not caused thereby. It was
held that there was sufficient evidence to justify A. 's surrender under
the Ashburton Treaty for extradition on a charge of murder. Re
Weir, 14 Ont. R. 389.

Sec. 5. — Time of Death. Treatment of Wounds. Killing Persons
Labouring Under Disease.

Time of Death. — Death within a year and a day. Code sec. 254.

The prisoner was convicted of manslaughter in killing his wife,
who died on November 10th, 1881. The immediate cause of her death
was acute inflammation of her liver which the medical testimony
proved might be occasioned by a blow or a fall against a hard sub-
stance. About three weeks before her death the prisoner had knocked
his wife down with a bottle ; she fell on the floor ,and remained in-
sensible for some time; she was confined to her bed soon afterwards
and never recovered. Evidence was given of frequent acts of violence
committed by the prisoner upon his wife within a year of her death by
knocking her down, and kicking her in the side. On questions re-
served, whether the evidence was properly received of assaults and
violence committed by the prisoner upon the deceased prior to the
date of death or prior to the occasion on which he had knocked her
down with the bottle, and whether there was any evidence to leave
to the jury to sustain the charge, it was held by the Supreme Court
of Canada, affirming the judgment of the Supreme Court of New
Brunswick, that the evidence was properly received and that there
was evidence to submit to the jury that the disease which caused her
death was produced by the injuries inflicted by the prisoner. Theal v.
The Queen, 7 Can. S.C.R. 397. .

Sec. 6. — Provocation.

All questions as to motive, intent, h^t of blood, etc., must be left
to the jury, and should not be dealt with as propositions of law. R.
V. McDowell (1865), 25 U.C.Q.B. 108, 115.

Although by see. 229(3) no one shall be held to give provocation
to another by doing that which he had a legal right to do, it is for
the jury and not for the Judge to determine any preliminary question
of fact upon which the alleged legal right depends. R. v. Brennan
(1896), 4 Can. Cr. Cas. 41,,27 Ont. R. 659.

On a trial for murder if the trial Judge directs the jury that
imminent peril of the prisoner's own life, or of the lives of his family,

828/ Homicide. [book ix.

is a ground for justification for killing, in defence of his household,
one of a party committing an tmprovoked assault upon him, but does
not direct them that a reasonable apprehension of immediate danger
of grievous bodily harm to the prisoner or to his wife and family
is an equal justification, such omission constitutes a substantial wrong
or miscarriage occasioned on the trial (Cr. Code see. 1019) where the
circumstances shewn in evidence are such as to point much more to
the latter ground of justification than to the former, and a n^w trial
should be ordered. R. v. Theriault (1894), 2 Can. Cr. Cas. 444 (N.B.) ;
Code sees. 53 and 55.

In the case of a sudden quarrel, where the parties immediately
fight, there may be circumstances indicating malice in the party kill-
ing', which killing will then be murder. R. v. McDowell (1865), 25
U.C.Q.B. 108.

Treatment of Wounds. — Code sec. 258.

Sec. 9.^Killing in Prosecution of Criminal, Unlawful, Wanton

Purpose.

Where Several Join to do an Unlawful Act. — Where a package of
revolvers was thrown into a carriage in which three prisoners con-
jointly charged with a crime were being conveyed under lawful arrest
and the prisoners all struggled to obtain revolvers, two of them
succeeding in doing so, whereupon all of them attempted to effect a
forcible escape, during which one of the peace officers was shot dead
by one of the prisoners, but by which of them is unknown, proof that
the defendant had one of the revolvers in the melee, and had ordered
another of the peace officers to "give up" inunediately after another
of the prisoners had told the defendant to "give it to him," is with
such facts, sufficient evidence of a conspiracy by the three prisoners
for an unlawful purpose, to wit, the escape, and of a common design
to use for its accomplishment any amount of violence or force, and a
conviction of the defendant for murder is, therefore, proper without
proof that he fired the fatal shot. It was proper for the trial Judges
to instruct the jury that "where all the parties proceed with the
intention to commit an unlawful act and with the resolution or determ-
ination to overcome all opposftion by force, that if by reason of such
resolution one of the party is guilty of homicide, his companions
would be liable to the penalty which he had incurred. ' ' The shooting
of the constable by one of the conspirators, in the prosecution of such
common purpose, was an act which was or ought to have been known
to be a probable consequence of prose&uting such purpose, and each
of the conspirators became, under Cr. Code sec. 69(2), a party tO'
the homicide. R. v. Rice (1902), 5 Can. Cr. Cas. 509.

CHAP. I.J Manslaughter. 828g

Constructive murder, as it is called, is a phrase which has no legal
meaning, but is a common and convenient way of describing a homicide
committed under circumstances which in law constitutes the offence
of murder, though the particular act which occasioned it may not have
been actually done or directly authorised by the accused. R. v. Rice
(1902), 5 Can. Cr. Cas. 509, per Osier, J.A.

Manslaughter. — "Where a person strikes another wantonly and
unlawfully, but without any intention of doing him bodily harm,
and thereby caused the other to fall arid dislocate his spine, and
death results therefrom, the assaulting party is guilty of manslaughter,
although deatb would not ordinarily result either from the blow or
from the fall. R. v. Chisholm, 14 Can. Cr. Cas. 15.

Sec. 1. — Of Manslaughter.

Culpable Homicide, which would Otherwise he Murder, may he
Reduced to Manslaughter hy Provocation. — Code sec. 261.

Culpahle Homicide not Amounting to Murder is Manslaughter.—
Code sec. 262.

Neglect to Guard Hole in Unused Ice or Mine. — Code sec. 287.

Punishment for Manslaughter. — Code sec. 268.

Provocation. — See Notes to Part 1, sec. 6.

Accessories. — See Notes to Bk. 1, ch. 5.

Corporations Cannot he Guilty of Manslaughter. — (See preceding
note on Criminal Liability of Corporations.)

Resistance to Officers of Justice. — (1) The question whether a
peace officer, on reasonable and probable grounds, believed that an
offence for which the offender might be arrested without a warrant
had been committed by the fugitive fleeing to escape arrest, is one for
the jury, and not for the Judge to decide.

(2) If a person with intent to steal something out of a shop or
store, opens a door leading into it by lifting the latch or turning the
knob and then enters the store, although during business hours, for
the purpose of carrying out his intention, he may be convicted of
shopbreaking under sec. 461 of the Code.

(3) When a peace officer, pursuing a fugitive, whom he had a
right to arrest without a warrant, foun4 that the fugitive was, in his
opinion, likely to escape for the time being owing to superior speed,
it is a question for the jury, on the trial of the officer for manslaughter
in killing the fugitive by a shot from his revolver, intended only to
wound and so stop his flight, whether, imder aU the circumstances,
the officer was justified under section 41 of the Code in such shooting
in order to prevent the escape of such fugitive, or whether such
escape could not have been prevented by reasonable means in a less
violent way. R. v. Smith, 17 Man. R. 282, 13 Can. Cr. Cas. 326.

8287;- Homicide. [book ix.

Lawful Acts Improperly Performed. — On a charge of manslaugh-
ter against the master of a ship in respect of a collision resulting in loss
of life, such recklessness must appear .as will amount to a wilful
attempt upon the lives of people in putting them to danger, and not
merely an error of judgment. R. v. Delisle (1896), 5 Can. Cr. Cas.
210 (Que.).

Striking a person unlawfully, but without intention to do him
bodily harm, is manslaughter, if the act results in death. R. v.
Chisholm, 14 Can. Cr. Cas. 15.

Sec. 1. — Indictment.

Where two persons are jointly indicted for murder .and one pleads
guilty, and the other not guilty, and the trial upon the latter plea
results in an acquittal, leave should be granted the other defendant
to change his plea of guilty to one of not guilty, if the circumstances
of the case are such that the verdict of acquittal already given in
respect of the one would be absolutely inconsistent with the guilt of
the other who had pleaded guilty. The King v. Herbert, 6 Can. Cr.
Cas. 214.

In a criminal trial as in a civil case, only the issues presented by
the evidence need be submitted to the jury.

On a trial for murder by shooting, where the evidence for the prose-
cution was of a deliberate shooting, and the accused giving evidence
on his own behalf claimed that the shooting was accidental, and there
was no evidence of provocation, a verdict of guilty will not be set
aside on the ground that the trial Judge withdrew from t^e jpry the
question of manslaughter by instructing them that their verdict on
the evidence must be one of either guilty of murder or one of acquittal.
The King v. Barrett, 14 Can. Cr. Cas. 464.

Sec. 4. — Conviction of Offences not Specifically Charged.

When only Part Proved of Offence Charged. — Code sec. 951.

Conviction of Manslaughter on Charge of Murder. — Code sec.
951(2).

Indictment for Same Offence with Averment of Intention after
Previous Acquittal. — Code sec. 909(1).

Previous Conviction, or Acquittal, Effect of. — Code sec. 909(2).

An acquittal on a charge of manslaughter is not a bar to a charge
of inflicting bodily harm based upon the same circumstances. R. v.
Shea, 14 Can. Cr. Cas. pt. 3, page 319.

It is not necessary that the lesser offence should be expressly
charged on the face of the indictment. It will be sufficient if the
charge must of necessity include it. Per Richards, C.J., R. v. Smith
(1874), 34 U.C.Q.B. 552, following R. v. Bird (1850), 5 Cox CO. 1;
2 Den. C.C. 94.

CHAP. I.] Previous Conviction or Acquittal. 828i

On an indictment for murder in the statutory form, the prisoner,
under 32-33 Viet. ch. 29, sec. 51 (Canada), cannot be convicted of an
assault, and his acquittal of the felony is, therefore, no bar to a sub-
sequent indictment for the assault, R. v. Smith, 34 U.C.Q.B. 552 ; R.
V. Ganes, 22 U.C.C.P. 185 ; R. v. Dingman, 22 U.C.Q.B. 283.

Upon an indictment for shooting with f elonous intent, the prisoner
if acquitted of the felony, may be convicted of common assault. R.
V. Cronan, 24 U.C.C.P. 106.

An acquittal on a charge of manslaughter is not a bar to a charge
of inflicting bodily harm based upon the same circumstances. The
King V. Shea, 14 Can. Cr. Cas. 319.

( 829 )

CHAPTEE THE SECOND.

OF PROCUKING OR ATTEMPTING ABORTION.

An infant in its mother's womb, not being in rerum natura, is not
considered as a person who can be killed within the description of
murder (a). But an unsuccessful attempt to effect the destruction of
such an infant appears to have been treated as a misdemeanor at common
law (6). As to the liability for killing the mother by attempts to procure
miscarriage or causing by such attempts the death of the child after
actual birth, vide ante, p. 663.

By the Offences Against the Person Act, 1861 (24 & 25 Vict. c. 100),
s. 58 (c) , ' Every woman, being with child, who, with intent to procure
her oicn miscarriage (d), shall unlawfully administer to herself any poison
or other noxious thing, or shall unlawfully use any instrument or other
means whatsoever with the like intent, and whosoever, with intent to
procure the miscarriage of any woman, whether she he or be not with
child, shall unlawfully (e) administer to her or cause to be taken by her
any poison or other noxious thing (/), or shall unlawfully (g) use any
instrument or other means whatsoever with the like intent, shall be
guilty of felony, and being convicted thereof shall be liable ... to
be kept in penal servitude for life . . .' (gg).

Sect. 59 (h), ' Whosoever shall unlawfully supply or procure any
poison or other noxious thing, or any instrument or thing whatsoever,
knowing that the same is intended to be unlawfully used or employed
with intent to procure the miscarriage of any woman, whether
she be or be not with child, shall be guilty of a misdemeanor, and

(a) Ante, p. 663.

(6) 1 Hawk. c. 3, s. 13. 3 Co. Inst. 51.
See a precedent of an indictment for this
offence as a misdemeanor at common law
in 3 Chit. Cr. L. 798, procured from the
Crown Office, Mich. T. 42 Geo. III.

(c) Framed on 7 Will. IV. and 1 Vict.
0. 85, s. 6, with the additions indicated by
italics. The second part in terms makes
it immaterial whether the woman were
or were not with child, in accordance with
the decision in R. v. Goodhall, 1 Den. 187,
or R. V. Goodohild, 2 C. & K. 293.

(d) See Taylor, Med. Jurisprudence
(5th ed.), ii. 149.

(e) The word ' maliciously ' was in
9 Geo. IV. c. 31, s. 13.

(/) The words of 43 Geo. III. c. 58, in
H. 1, were ' any deadly poison or other
noxious and destructive substance or

thing ' ; in s. 2, ' any medicines, drug or
other substance or thing whatsoever.
The words in 9 G6o. IV. c. 31, where the
woman was quick with child, were, ' any
poison or other noxious thing.' Where
the woman was not quick with child,
' any medicine or other thing.' See note
(o), ■post, p. 830.

(g) ' Unlawfvdly ' was not in 9 Geo. IV.
0. 31, s. 13.

[gg) Or for not less than three years, or
to be imprisoned with or without hard
labour for not more than two years. 54
& 55 Vict. .J. 69, s. 1. Ante, pp. 211, 212.
The words omitted were repealed in 1892
(S. L. R.).

(h) This section was new in 1861, and
intended to check the obtaining of poison,
&c., for the purpose of causing abortion.

830 Of Procuring or Attempting Abortion. [book ix.

being convicted thereof shall be liable . . . (i) to be kept in penal
servitude.

The word 'unlawfully' excludes from the section acts done in the course
of proper treatment in the interest of the life or health of the mother (/).

In the case of an indictment against the mother under sect. 58 it is
necessary to prove that she was with child, but not that she was quick
with child (h), and in the case of any other person, it is immaterial whether
the woman were or were not. with child.

On an indictment against a woman for being present aiding and
abetting the use of an instrument upon her to commit an offence against
sect. 58, it was held that the woman was properly convicted on proof
that she consented to the use of the instrument with the intent, &c.,
and that she was with child though the indictment did not allege that
she was with child (l). Apparently the mother could be found guilty of
aiding and abetting an offence under the second part of the section even
if she was not with child (m).

Where a woman, being with child, with intent to procure abortion,
takes a thing which she believes to be noxious, but which is, in fact,
harmless, she may be convicted of an attempt to commit an offence
within sect. 58 (n).

Drugs. — An indictment upon 43 Geo. III. c. 58, s. 2, (rep.) charged the
prisoner with having administered to a woman a decoction of a certain
shrub called savin : and it appeared upon the evidence that the prisoner
prepared the medicine which he administered by pouring boiling water
on the leaves of a shrub. The medical men who were examined stated
that such a preparation is called an infusion, and not a decoction (which is
made by boiling the substance in the water), upon which the prisoner's
counsel insisted that he was entitled to an acquittal, on the ground that
the medicine was misdescribed. But Lawrence, J., overruled the objec-
tion, and said, that infusion and decoction are ejusdem generis, and that
the variance was immaterial (o).

(i) The words omitted were repealed in
1892 (S. L. R.). The present punishment
under 54 & 55 Vict. c. 69, s. 1 is penal
servitude for not more than five nor less
than three years, or imprisonment with or
without hard labour for not more than
two years. Vide ante, pp. 211, 212.

(j) See Taylor, Medical Jurisprudence
(5th ed.) ii. 154, 155.

(h) The repealed enactments 43 Geo.
III. c. 58 and 9 Geo. IV. c. 31 drew
a distinction between cases in which a
woman was quick with child and cases
where she was not, even if she believed
herself to be so. R. v. Scudder, 1 Mood.
216. On this subject see R. v. Phillips,
3 Camp. 77. In R. v. Wycherley, 8 C. &
P. 262, where a jury of matrons was em-
panelled to determine whether a woman
convicted of murder was quick with child,
it was ruled that quick with child meant
pregnant. See Taylor, Med. Jurisp. (5th
ed.), ii. 35.

[l) R. V. Sockett, 24, T. L. R. 893 ; 72

J. P. 428.

(m) Ibid.

(n) R. V. Brown, 03 J. P. 790, Darling.
J. As to inciting to commit such offence,
vide ante, p. 203.

(o) He added that the question was
whether the prisoner administered any
matter or thing to the woman to procure
abortion. R. v. Phillips, 3 Camp. 74. In
R. V. Coe, 6 C. & P. 403, where the prisoner
was indicted on 9 Geo. IV. c. 31, s. 13, for
administering saffron to a female, and his
counsel was cross-examining her as to her
having taken something else before the
saffron, and also as to the innoxious nature
of the article ; Vaughan, B., said : ' Does
that signify ? It is with the intention
that the jury have to do ; and if the
prisoner administered a bit of bread merely
with intent to procure abortion, it is
sufficient.' It is not stated upon which
branch of the section this indictment was
framed ; if upon the latter, which uaed-
the words ' any medicine or other thing,'

CHAP 11.3 Of Administering Drugs, &c. 831

On an indictment for administering feverfew and other drugs to
procure abortion, it appeared that the prisoner gave the woman, who was
alleged to be with child by him, two powders, with directions to take one
on each of two successive nights, and said that the effect would be to
cause miscarriage. She took one of the powders, with the feverfew,
which brought on violent sickness. The other powder was examined by
a physician, and he could not discover any mineral substance in it ; as
far as he could judge from the taste, smell, and appearance, it was a
mixture of savin and fenugreek, the latter being the larger ingredient.
The fenugreek would scarcely produce any effect at all ; savin, in that
quantity, might produce a little disturbance in the stomach for the time,
but would do no further injury. Feverfew (p) is an herb very similar to
camomile ; it is a tonic in common use among the peasantry, and has
nothing noxious in it. A mixture of the powder and decoction of this
herb would not alter the properties of either. The prisoner upon two or
three subsequent occasions had brought the woman other medicines to
take for the same purpose, some of which she had taken, but not the rest.
Wilde, C. J., held that the evidence was not sufficient to prove that the
drugs administered came within the meaning of the words ' poison or other
noxious thing ' {q).

Where the prisoner caused half an ounce of oil of juniper to be admin-
istered, and it was proved that quantities considerably less may be taken
without any ill effect, but that half an ounce produces ill effects and is
dangerous to a pregnant woman, it was held that there was evidence of
the administering of a ' noxious thing ' within the section (r).

In order to bring a case within sect. 59 of the Act of 1861,it is not neces-
sary that the intention of using the noxious substance should exist in the
mind of any other person than the person supplying it. InE. v. Hillman (s),

perhaps the dictum was right. But deoiaion in this case seems open to grave
neither this dictum, nor that of Lawrence, doubt. It is submitted that the true
J., in E. V. Phillips, apply to s. 58, meaning of the words ' poison or other
supra, which uses the words ' any poison noxious thing ' is such things as in their
or other noxious thing ' only in the case nature are poisonous or noxious ; and that
of administering or causing to be taken ; it is a misapprehension to suppose that
and although a doubt is suggested in a note the statute requires such a quantity of a
to R. V. Coe as to whether the words ' other poison or other noxious thing to be ad-
means ' might not be applied to other ministered as shall be noxious. If a per-
substances than such as are poisonous or son administers any quantity of a poison,
noxious ; it would seem that the words however small, it has never yet been
' other means whatsoever ' cannot be so doubted, that, if it were done with intent
applied in s. 58 : firstly, because they are to murder, the offence of administering
in an entirely distinct sentence ; secondly, poison with intent to murder was com-
beoause they are governed by the word plete ; and B. v. Cluderay, 1 Den. 514,
' use,' and not by ' administer.' C. S. G. shews that if poison be administered in
See Rose. Cr. Evid. (13th ed.), 232. such a way that it cannot injure, the

{p) Or Featherfew Matricaria, so called offence is nevertheless complete. Wilde,

from its supposed use in disorders of the C.J., there said: 'The act of administering

womb. poison with intent to kill is proved. The

(q) R. V. Perry, 2 Cox, 223. Wilde, effect of that act is beside the question.'

C. J., also held that the other transactions It is submitted, therefore, that if there be

were admissible as showing the intent with an intent to procure abortion, it is quite

which the particular drugs referred to in the immaterial how small the quantity be of

indictment were administered. See post, the poison or other noxious thing that is

Vol. ii. p. 2108 e< sej. As the prisoner ad- administered.' C. S. G.
ministered the drugs with intent to procure (r) R. v. Cramp, 5 Q.B.D. 307 ; 49 L. J.

a miscarriage, and as savin is unquestion- M. C. 144.
ably in its nature a noxious drug, the (s) L. & C. 343 ; 33 L. J. M. C. 60.

832 Of Procuring or Attempting Abortion. [Bookix.

the prisoner was indicted for supplying savin, knowing that it was intended
to be unlawfully used to procure a miscarriage, and it was contended that
there was no case against him, because it was necessary that he should
know that the savin was intended to be used with intent to procure the
miscarriage, whereas it was not intended, except by the prisoner himself,
to be so used ; the jury found that the case was in other respects proved,
but that the prosecutrix did not intend to take the savin, nor did any
other person, except the prisoner, intend that she should take it. Upon
a case reserved, it was held that the intention of any other person than the
prisoner was not necessary to the commission of the offence. The statute
is directed against the supplying of any substance with the intention that
it shall be employed in procuring abortion. The prisoner, in this case,
supplied the substance, and intended that it should be employed to
procure abortion. He knew of his own intention that it should be so
employed, and was therefore within the words of the statute. He was
also within the mischief of the statute, and was rightly convicted.

In E. V. Titley (t), on an indictment under sect. 59, it appeared that
the defendant supplied a mixture of ergot of rye and perchloride of
iron with intent that it should be used by a certain woman to produce
abortion (u). It was ruled that the defendant was liable, although the
woman for whom it was intended was not pregnant, and that the
enactment applied ' whether there is a woman in a state fit to be the
subject of the operation or not ' (v).

The thing supplied with intent to procure abortion must be noxious
in its nature, ' according to the form, quahty, or frequency with which
it is administered ' (w). Where, therefore, an indictment charged the
prisoner with supplying a certain noxious thing with intent to procure
abortion, and a surgeon proved that the liquid was some vegetable
decoction of a harmless character, and such as would not procure a mis-
carriage ; but if taken with the belief that it would produce it, it might,
by acting on the imagination, produce that effect ; it was held that this
liquid was not within the clause, although the woman proved that, after
taking a wine-glassful, she felt dizzy in the head when she went to bed,
and felt stupid in the head the next morning (a;).

But it need not be shewn what the noxious thing is ; it is sufficient if
something is administered that produces miscarriage (y).

To constitute an administering, or causing to be taken, it is not neces-
sary that there should be a delivery by the hand. Where, therefore,
on an indictment for administering poison and causing poison to be taken,
it appeared that the prisoner had mixed poison with coffee, and had told
her mistress that the coffee was for her, and the mistress took it, and drank
some of it ; it was held that this was sufficient (2). In E. v. Cadman (a),

it) 14 Cox, 502, Stephen, J. (w) Taylor, Med. Jui-isp. (5th ed.),

(«) The indictment as originally framed ii. 183, where numerous instances of trials

charged an intent to procure the miscar- for administering particular drugs are

riage of a certain woman not named. On collected.

objection it was amended to ' a woman to (x) R. v. Isaacs, L. & C. 220.

the jurors unknown.' (y) R. „. Hollia, 12 Cox, 463 (C. C. R.).

(v) For criticisms on these cases see R. (z) R. v. Harley, 4 C. & P. 369, Park J.

V. Hyland [1898] 24 Victoria L. R. 101 ; (a) 1 Mood. 114; Carr. Supp. 237.

R. V. ScuUey [1903], 23 N. Z. L. R. 380.

CHAP. II.] Of Administering Poison, do. 833

a mere delivery to the woman, however, was held insufficient, and it was
said that the poison must be taken into the mouth to constitute an
administering. But in E. t;. Walford {&), it was held unnecessary for
proving administration to shew that the poison had been taken into the
stomach.

Upon an indictment for unlawfully administering to, and causing to be
taken by, C, poison, with intent to procure her miscarriage, it appeared
that she, being and believing herself to be pregnant, applied to the
prisoner to get her something to procure her miscarriage, and that the
prisoner accordingly purchased some preparation of mercury, which he
gave to her, directing her to take one half of the quantity in gin ; C.
accordingly procured the gin, and, in the absence of the prisoner, took the
dose, which produced a miscarriage. The jury found these facts, and
that the mercury was both given by the prisoner to C, and taken by her,
with intent to procure the miscarriage ; and, upon a case reserved, it
was held that the prisoner was properly convicted ; as there was a
'' causing to be taken ' within the meaning of the statute (c). So where on
a similar indictment it appeared that the prisoner had talked with C.
about her being with child, and brought her a bunch of savin, and told her,
if she put it in some gin, and took from half a glass to a glass two or three
times a week, it would destroy her child, and she took the savin and gin
three or four times accordingly ; and the prisoner afterwards induced C.
to get some blue pills from a chemist, which the prisoner made up with
some flour and tea into pills, of which C. took twenty or thirty, and was
very ill from the time of taking the pills till she was confined ; it was held,
upon a case reserved, that there was no distinction between this and the
preceding case (d).

Under the Act of 1861 , in such cases as the two last, the woman being
with child would be a principal, and the man an accessory before the fact ;
but where the woman is not with child these cases will still apply ; for
there the woman's criminality will be exactly the same as it was under the
former Act.

On an indictment for administering savin with intent to procure
abortion, the administration of savin on one day was proved, and it was
proposed on the part of the prosecution to prove the administration of
similar drugs on many subsequent days for the purpose of shewing the
intent, and also as part of the same felony, and it was urged that the
substance of the felony was the administration of drugs for the purpose
of procuring abortion, and if that were done by homoeopathic doses, taken
for a long period, all would form part of one felony ; but Cresswell, J.,
held that other matters of the same description might be proved
for the purpose of shewing the intent, but that the administration of

(b) [1899] 34 L. J. (Newsp.) 116, Wills, J. distinguishes the case from B. v. Williams,
who questioned the accuracy of the report 1 Den. 39.

in R. V. Cadman. W R. v. Farrow, D. & B. 164. It is not

(c) R. V. Wilson, J). & B. 127. Cheney, stated expressly whether the savin and pills
though culpable, was not guilty of felony, were taken in the absence of the prisoner,
and therefore not guilty of the felony but the inference from the facts stated is
created by the statute, and the prisoner that they were. See also R. v. Gaylor, Dj
was, therefore, the only person coming & B. 288. R. v. FretweU, L. & C. 161.

within the words as the principal ; and this
VOL. I

834 Of Procuring or Attempting Abortion. [BOOKIx.

other savin on other days could not be given in evidence as part of the
ofience (e).

Instruments or other Means;- The decisions on criminal use of
instruments within sects. 58, 59, are to be found in medical rather than
in legal treatises (/).

In R. ■;;. Dale (g), where an instrument or appliance is used which might
be properly employed for innocent treatment of the woman, Charles, J.,
ruled that evidence that the accused had by similar means caused or
attempted to cause miscarriages was admissible to prove that the act was
done with a guilty intent. In R. v. Bond (h), it was pointed out that the
evidence was not in fact admitted ; and that it would not be admissible
when the only question at issue was whether the instrument was in fact
used (i) . But in that case, after full discussion, it was held by the maj ority
of the Court (/), that on an indictment under sect. 58 against a medical
man, to shew guilty intention, evidence might be admitted to prove the
use by him of instruments with the avowed intention of producing the
miscarriage of another woman, and of his then using expressions indicating
that he was in the habit of performing similar operations for the same
illegal purpose.

As to advertisements, &c., inciting to or advising the procuring of
miscarriage, see ante, p. 203, note (c).

A woman who wrongly believing herself to be with child conspires with
others to procure her miscarriage is liable to conviction for criminal
conspiracy (k).

Evidence. — As to the medical aspects of the evidence see Taylor, Med.
Jurisp. (5th ed.), ii. 180. Dying declarations are not admissible on
indictments for offences within this chapter (1). A statement made before
her death by the woman operated upon, tendered in evidence on an
indictment under sect. 58, was rejected on the ground that though made
in the presence and hearing of the accused, he had not a sufficient
opportunity of explaining or denying it (m).

"Where the woman with respect to whom an offence against sects. 58, 59
is alleged to have been committed or attempted is a witness for the
Crown, her evidence requires corroboration as that of an accompHce (w),
m a material particular implicating the accused (o). But this rule does
not apply where the woman has acted as a police spy with a view to
detect an abortionist (p).

(e) R. V Calder, 1 Cox 348. See R. v. (k) E. v. Whitohuroh, 24 Q.B.D. 420.

Perry, ante p. 831, note {q}. ante, p. 151.

(/) Seethe oases noted in Taylor, Medical (I) Post, Vol. u. p. 2084 ' Evidence '

'"7l6 ^Tt'oT ''■' "• '''-'''■ Hi:liS- J '"■"' ''''''' ^'^^''"''^
(S llTl MVl\ T (? R ;. M_. 72 J. p. 214, Bucknill, J.

L TT ^;i *^ V"r ^T^?"°^' '^- (°) ^- "• Everest, 73 J. P. 269.

(?) Kennedy, Darling, Jelf, Bray and (p) R. v. Bicklev 73 T P 2Sq • 9 Pr

AT. Lawrence, JJ. Alverstone, C.J. and App. R. 53. ^' ' ^

Ridley, J., dissented.

( 834a )

CANADIAN NOTES.

OF PROCURING OR ATTEMPTING ABORTION.

Advertising or Having Drugs to Cause Abortion, etc. — Code sec.
207.

Administering Drugs or Using Instruments to Procure Abortion. —
Code sec. 303.

Attempt by Woman to Procure Abortion. — Code sec. 304.

Supplying Drugs or Instruments. — Code see. 305.

Killing an Unborn Child. — Code sec. 306.

The statute 32-33 Viet. ch. 20, sec. 59, as well as the later Act
R.S.C. 1886, ch. 162, sec. 47, used the phrase "any poison or other
noxious thing." It was laid down under that statute that while
poisons .are not noxious things when taken as medicine in ordinary
treatment, that if taken or administered in undue and immoderate
quantities- the excess of the article becomes noxious, and it is not
essential to support a conviction that the article should be noxious
in itself. E. v. Stitt (1879), 30 U.C.C.P. 30, 33.

An indictment under sec. 304 of the Code charging accused "with
unlawfully using on her own person . . with intent thereby to
procure a miscarriage" (without stating whose miscarriage) is suffi-
cient. Rex V. Holmes, 9 B.C.R. 294, 6 Can. Cr. Cas. 402.

Counselling a woman in Canada to submit in a foreign country
to an operation to procure miscarriage is not indictable in Canada,
even if the operation be actually performed as counselled. R. v.
Waltem, 14 Can. Cr. Cas. 122.

In extradition proceedings for abortion alleged to have been com-
mitted by a physician at the instigation of the accused, it is necessary
to produce evidence to prove both that the physician's operation was
unnecessary and unlawful, and that the accused procured or abetted
such unlawful operation. The King v. McCready, 14 Can. Cr. Cas.
481.

( 835 )

CHAPTEE THE THIED.

OF CONSPIEACY, INCITEMENT AND ATTEMPTS TO MURDER : AND OP
WOUNDING AND CAUSING GRIEVOUS BODILY HARM.

Sect. I. — Oe Conspiracy and Incitement to Murder.

By 24 & 25 Vict. c. 100, s. 4 (a), ' All persons wlio shall conspire,
confederate, and agree to murder any person, whether he be a subject of
His Majesty or not, and whether he be within the King's dominions or not,
and whosoever shall solicit, encourage, persuade, or endeavour to persuade,
or shall propose to any person, to murder any other person, whether he be
a subject of His Majesty or not, and whether he be within the King's
dominions or not, shaU be guilty of a misdemeanor, and being convicted
thereof shall be liable ... to be kept in penal servitude for any term
not more than ten years ... (6).

As regards conspiracy or incitement to murder within the realm or
within the Admiralty jurisdiction, this enactment does no more than
prescribe the punishment for an offence already recognised by the common
law.

In E. V. Macdaniel (c), a number of persons, in order to procure
rewards offered by Acts of Parliament for apprehending highway robbers,
concocted a false charge of robbery against one Kidden, who was convicted
and executed for it upon the evidence of two of the conspirators.
Macdaniel and others were first tried and convicted on an indictment
for conspiring to procure Kelly and Ellis to go to Deptford, in Kent, and
there take money from Salmon on the King's highway, who should be
waiting there for that purpose, with intent to cause Kelly and Elhs to be
apprehended and convicted of highway robbery from Salmon, and so un-
justly and wickedly to procure to themselves the rewards (d). Macdaniel
and Berry were also indicted and convicted for the wilful murder of one
Kidden, in maliciously causing him to be unjustly apprehended, falsely
accused, tried, convicted, and executed, well knowing him to be innocent,
and with intent to share the reward (e). On this indictment a verdict of

(a) In Ireland, under 10 Geo. IV. o. 34, (6) The words omitted were repealed in

ss. 8, 9, the ofienoes mentioned in this 1892 (S. L. R.), as superseded by 54 & 55

section were capital felonies; and in the Vict. c. 69, s. 1, ante, pp. 211, 212, under

Bill, as it passed the House of Lords, the which the minimum term of penal servi-

offences were continued as felonies, but tude is three years and imprisonment

made punishable by penal servitude for with or without hard labour for not more

life ■ the House of Commons, however, two years may be awarded,

altered them to misdemeanors, punishable (c) Fost. 121 ; 19 St. Tr. 746.

with ten years' penal servitude, and as all {d) On their conviction they were sen-

the offences specified in this clause appear tenoed inter alia to the pillory, and one of

to be misdemeanors at common law the them while in the pillory was killed by the

effect of this clause is merely to alter the populace. 19 St. Tr. 809.

punishment. (e) 19 St. Tr. 810.

836 Of Conspiracy and Incitement to Murder, [book ix.

guilty was returned, but judgment was respited to allow a motion in arrest
of judgment, and the law ofi&cers declined to argue the point and the
prisoners were discharged on that indictment (/).

Conspiracy;— The words ' whether he be a subject of His Majesty or
not, and whether he be within the King's dominions or not,' were intro-
duced in order to make it perfectly clear that sect. 4 included cases
where the conspiracy was to murder a foreigner in a foreign country {g).

It is not essential that the conspiracy should have been formed in
England or Ireland. The Act, by sect. 68 {h) includes conspiracies within
the jurisdiction of the Admiralty of England or Ireland ; and even if that
section did not exist, British subjects who conspire on the high seas are
triable according to the course of the common law in any county in
England where any act in furtherance of such conspiracy is done by any
one of them, or by their innocent agent ; for the crime of conspiracy,
amounting only to a misdemeanor, may, like high treason, be tried
wherever one distinct overt act of conspiracy is in fact committed (i).

Although at common law the criminal jurisdiction of counties was
local (j), yet in conspiracy the jury could, as we have seen, at common
law take cognisance of acts done on the high seas or in another county,
provided there were an overt act done in the county where the indictment
was preferred : and it would therefore seem that if there were a conspiracy
on land abroad, a jury might try it in any place in England where any
overt act in pursuance of it was done. Lastly, suppose A. in England

(/) 19 St. Tr. 813 ; vide ante, p. 679.
ig) And to do away with questions which
had previously arisen see Y. B. ( 13 Ed w. IV.) ,
f . 9, pi. 5. The matter was much discussed in
R. V. Bernard, 1 P. & F. 240 ; 8 St. Tr. (N. S.)
857, an indictment for conspiracy to murder
the Emperor Napoleon III. Mr. Greaves'
view on the subject were as follows : ' The
words were introduced ex abundanti cautela
only, and this section cannot be cited as a
legislative declaration that a conspiracy in
England to murder a foreigner in a foreign
country is not a conspiracy indictable at
common law, or that the killing of a
foreigner in a foreign country, under such
circumstances as would amount to murder
if the killing were in England, is not
murder in contemplation of the law of
England. The introduction of the words
in question makes it unnecessary to
discuss either of those questions ; but,
having with no small care examined all the
a"uthorities to be found on the subject, I
may be pardoned for sajdng it is perfectly
clear to me that the killing of any person
anywhere in the world, whether on land or
sea, under such circumstances that i£ the
kilhng had been in England it would have
amounted to the crime of murder, has ever
been murder in contemplation of the law of
England. Wherever a murder has taken
place in England or on the narrow seas, the
Court of King's Bench, or Courts of Oyer
and Terminer or Gaol Delivery, have had
jurisdiction to try it by a jury. Wherever
a murder has taken place on the high seas,

the Court of Admiralty had jurisdiction to
try it according to the civil law ; and
wherever a murder has taken place on land
abroad, the Court of the Constable and
Marshal had jurisdiction to try it according
to the civil law. By sundry sta-tutes in and
since the time of Hemy VIII. the jurisdic-
tion to try murders committed on the high
seas and on land abroad, has been conferred
on certain tribunals with the aid of a jury ;
but none of these statutes either alters, or
professes to alter, the nature of the offence ;
on the contrary, they all treat it as murder,
and only provide a different mode of trial.
The doubt which has arisen, and not unna-
turally, seems to have sprung from suppos-
ing that, because the Common Law Courts,
trying all offences by the aid of a jury, had
only jurisdiction over offences committed
in England or on the narrow seas, therefore
murder and other offences against the law
of nature and nations were no offences at
all in the eye of the law of England. The
answer is, that the Courts of Admiralty and
of the Constable and Marshal did try such
offences from the earliest times; and,
therefore, it is clear that they always were
offences in the eye of the law of England."
See Greaves, Crim. L. Cons. Acts (2nd ed.)

{h) Ante, p. 40.

(i) See R. v. Brisao, 4 East,
p. 53. R. V. Bowes, cited
Brisao.

(?) R. V. Weston, 4 Burr. 2507
Mansfield, C.J. ; vide ante, p. 19. '

166, ante,
in R. V.

Lord

Chap. lii.] Of Consfiracy and Incitement to Murder. 837

conspired with B. abroad to commit a murder, and A. did some overt act
in England, it would seem that both A. and B. might be tried in England,
if B. was a British subject ; and that if B. was not a British subject, A.
might, nevertheless, be tried where he did that overt act ; for such an act
would be an act coupled with a criminal intent, and as such indictable,
within the principle laid down in E. v. Higgins {k), even if it should be
objected that a conspiracy between A. in England and B., a foreigner,
abroad, was not a conspiracy within the criminal law of England. And
as a letter written and sent, but intercepted, is an overt act in treason (l) ;
so a letter may be an overt act in conspiracy. The provisions of the
section apply to the overt acts of aliens within the realm or within
the jurisdiction of the Admiralty of England or Ireland (m).

If a question should be raised whether, if one of the conspirators were
to commit the murder, and the others were indicted as accessories before
the fact, it might not be objected that they could only be tried for a
misdemeanor under this clause ; the answers are, first, that this clause
has only altered the punishment, and created no new ofience ; and at
common law the power to prosecute for a misdemeanor was not only
never suggested as in any way preventing a prosecution for felony, but
the best authorities always held that the misdemeanor merged in the
felony. But, secondly, nothing can be clearer than that if a statute
create a misdemeanor, and something be done in pursuance of, and in
addition to, that misdemeanor, which amounts to a felony, all persons
who have done acts which would make them accessories before the fact
to that felony, may be indicted as such (putting aside merger altogether),
on the plain ground that they are totally different offences. It has never
been suggested, that because wounding with intent to murder is made a
felony, therefore a man who killed another by wounding him could not be
indicted for murder. There is no such thing as merger of one felony by
another ; and when, as is often the case, the same acts constitute several
felonies, either at common law or by statute, the prosecutor may indict
for any of them (n). Thus, in cases of real murder, indictments for
manslaughter have often been preferred, and so also indictments for
administering poison where death has ensued.

Where on an indictment against three prisoners and others unknown,
for a conspiracy to murder, one of them was tried first, because they
severed in their challenges, and the evidence tended to affect him and the
others named in the indictment, and made a case to go to the jury as to a
conspiracy by the three : but there was no evidence to shew that any other
person was engaged in the conspiracy : and the jury found the prisoner
guilty, and on his being brought up for judgment it was objected that the

(i) 2 East, 5. Of. E, v. Bull, 1 Cox, 281, of the King's subjects extend to aliens

ante, pp. 810, 815. withintlierealm(ea;par(cBarronet,lE.&B.

(l) B. V. Hensey, 19 St. Tr. 1341 ; 1 Burr. 1), for while there they are subjects by local

642. allegiance. 1 Hale, 542. Courteen's case,

(m) Vide ante, pp. 45, 103. By 32 Hob. 270: 80 E. R. 416. And see De Jager

Hen. VIII. c. 16 (rep. 1863, 26 & 27 Vict. u. v. R. [1907], A. G. 326. The rule does not

125,) all aliens who come into the realm apply to foreign sovereigns or other persons

shall be bounden by and unto the laws and enjoying the privilege of exterritoriality,

statutes of this realm and to all and singular Vide ante, pp. 103, 299.

the contents of the same. Statutes speaking (m) See 52 & 53 Vict. o. 63, s. 33 ante, p. 4.

838 Of Conspiracy and Incitement to Murder. [BOOKIX.

prisoner ought not by law to have been tried alone. The objection was
overruled and sentence passed. Upon a case reserved, it was contended
that the judgment was irregular : for if the others were acquitted, the
prisoner could not be guilty of conspiracy : that there was a contradiction
on the face of the record, for the others had not been found guilty, and
until they were his guilt was not proved : and that the judgment ought to
have been respited. But it was held that there were no grounds for
respiting or arresting judgment (o).

Incitement to Murder.— Upon an indictment for soliciting A. to murder
C, the evidence was that the prisoner gave poison to A. to administer
to C, and which A. accordingly did ; but C. having taken part of it,
discovered the fact in time to save his life. The jury found him guilty,
believing that the poison had been delivered to C. with intent to poison
him, and that the solicitation was to that effect ; the judges held both
indictment and conviction proper, in treating the prisoner as a principal
soliciting, and not as an accessory before the fact (p).

In R. V. Most (q), an indictment under the above section for
encouraging and endeavouring to persuade others to commit murder,
the alleged encouragement and endeavour to persuade to murder was
the publication and circulation by him of an article written in
German in a newspaper published in London exulting in the recent
murder of the Emperor of Eussia, and commending it as an example.
The jury were directed that if they thought he intended to, and did,
encourage any person to murder any other person, whether a subject of
Her Majesty or not, and whether within her dominions or not, and that
such encouragement was the natural e£Eect of the article, they should
find him guilty. It was held that such direction was correct, although
the encouragement was not addressed to any person in particular.

It is not necessary to prove that the mind of the person solicited
was affected by the solicitation (r).

In R. V. Antonelli (s), the indictment contained counts against A., for
encouraging and endeavouring to persuade persons unknown to murder
certain persons, to wit, sovereigns and rulers of Europe, ' not then being
within the dominions of our Lord the King, and not being subjects of
our said Lord the King,' and against B. ; and also a count for encouraging
and endeavouring to persuade persons unknown to murder Victor

(o) E. V. Ahearne, 6 Cox, 6, relying on spired might be acquitted, and it would be

R. V. Cooke, 5 B. & C. 538. ' It has always absurd that he should thereby be exone-

appeared to me perfectly clear that even if rated. It is a fallacy to suppose that there

on a subsequent trial the others were ac- is any inconsistency on the face of a record

quitted, it would in no way affect the pre- containing an indictment, verdict, and

vious verdict or judgment. The jury who judgment, where any state of facts can be

convict a prisoner who is tried alone for suggested which is consistent with the

conspiracy, must have been satisfied both statements in that record.' C. S. G.
that he conspired with the other, and that {p) R. v. Murphy. Jebb. Circ. & Pr. Cas.

the other conspired with him, and the sub- 315 (Ir.) : Hayes, Dig. 631.
sequent acquittal is in no respect necessarily {g) 7 Q.B.D. 244.

inconsistent with that verdict ; for it may (r) Ibid, R. v. Krauae 66 J. P. 121

have proceeded on the want or failure of Alverstone, C.J.

evidence. Suppose a defendant pleaded (.s) [1905] 70 J. P. 4, Phillimore J. Cf.

guilty, or was convicted on his own written R. v. Bourtzeff, 129 Cent. Cr. Ct. Sess. Pap!

confession, it might well be that the person 284. " '

with whom he had admitted he had con-

CHAP. III.] Attempts to Commit Murder. 839

Emmanuel III., King of Italy. The counts were challenged as bad for
indefiniteness. Phillimore, J., ruled that the sovereigns of Europe were
a sufficiently definite class, but considered that the word ' rulers ' was
somewhat vague and would have been better left out. The incitement
was contained in a pamphlet called ' L'lnSurrezione/ published and put
on sale by A., on the anniversary of the murder of King Humbert of
Italy. Phillimore, J., ruled that so far as it merely contained invectives
on foreign systems of government it was not criminal ; but left the case
to the jury as to whether the document incited persons to murder the
sovereigns of Europe in general or the reigning King of Italy in particular.
The jury were also directed that B., who was charged with abetting, was
liable if he circulated the pamphlet knowing, or wilfuUyshutting his eyes to,
what it contained.

In E. V, Fox (<), on an indictment for soliciting H. to murder K., it
was proved that the defendant wrote and posted a letter addressed toH.,
in which he requested him to murder K. ; but that letter by accident
fell into the hands of a fourth person and never reached H. It was
ruled that this evidence was insufficient to warrant a conviction on the
grounds that the words solicit, encourage, persuade, or endeavour to per-
suade all involved actual communication with the person to be influenced.

In R. V. Krause (m) the defendant was indicted for soliciting, persuading
and endeavouring to persuade B. to murder one Foster, and for
attempting to solicit, &c., B. to murder F. The case for the prosecution
rested on two letters alleged to have been sent by the defendant
to B., in South Africa. There was no evidence that the letters reached
B. It was ruled in accordance with R. v. Fox (supra) that to constitute
the statutory offence there must be evidence that there must be some
communication to the person said to have been solicited ; but the case
was left to the jury on the counts charging an attempt to commit the
statutory offence {v).

Sect. II. — Attempts to Commit Murder.

Common law. — Attempts to murder are at common law misdemeanors
only (w). Such attempts, with maiming, and doing or attempting great

(() R. V. Fox [1871], 19 W. R. 109 (C. C. Sid. 230, where the defendant, having been

R. Ir.), Whiteside, C.J., Pigott, C.B., Eitz- convicted for lying in wait to kill Sir Har-

gerald, B., Fitzgerald, J., O'Brien, J., bottle Grimstone, the Master of the Rolls,

George, J. ; diss. Deasy, B., Lawson and was sentenced to fine and imprisonment,

Morris, JJ. the finding surety for his good behaviour

(«) [1902] 66 J. P. 121, Alverstone, C.J. for life, and acknowledging his offence at

Cf. R. V. McCarthy [1903], 2 Ir. Rep. 146, the bar of the Court of Chancery. And see

154, a charge of inciting persons unknown two precedents of indictments at common

to intimidate certain other persons unknown, law, for misdemeanor in attempting to

and to take part in a criminal conspiracy. murder by poison, 3 Chit. Cr. L. 796. Where

{v) SeeR. ■y.Ran3ford,13Cox,9 (C.C.R.), the first count of an indictment charged
and ante, p. 203, tit. 'Incitement.' In R. v. an assault with an intent to murder, Ken-
Pox there is some discussion as to whether yon, C. J., being of opinion, upon the facts
the word ' endeavour ' in the statute is given in evidence, that if death had ensued
equivalent to ' attempt ' in the common-law it would only have been manslaughter,
sense. See R. v. Watt, 20 Cox, 852 : 70 directed the jury to acquit the defendant
J P. 29, as to evidence. upon that count. R. v. Mitton [1788], 1

(w) Staundf. 17. 1 East, P.C. 411. 1 East, P.C. 411. See Starkie, Ev. tit.

Hawk. c. 44. R. v. Bacon, 1 Lev. 146. 1 ' Assaults.'

840 Attempts to Commit Murder. [book ix.

bodily harm, were severely punishable iTnder a series of enactments now
repealed.

Former Statutes.— 5 Hen. IV. c. 5 (x) related to cutting tongues and
putting out eyes. Sir John Coventry's Act (22 & 23 Car. II. c. 1) (y) made
malicious maiming a capital felony. 9 Anne, c. 21 (c. 16, Eufihead) made
it a capital felony to attempt to kill, assault, wound, &c., a privy
councillor. The Black Act (9 Geo. I. c. 22) made maliciously shooting
at any person a capital offence. 26 Geo. II. c. 19, s. 1 punished the beating
or wounding persons shipwrecked with intent to kill them, &c., or putting
out false lights to bring a ship into danger. Lord Ellenborough's Act
(43 Geo. III. c. 58) dealt {inter alia), with malicious shooting. These
statutes were repealed in 1827 (7 & 8 Geo. IV. c. 27), 1828 (9 Geo. IV. c. 31),
and 1854 (17 & 18 Vict. c. 120). The substituted provisions contained
in those Acts were repealed in 1861 (24& 25 Vict. c. 95).

Present Law. — The existing statute law punishing attempts to murder
is contained in sects. 11-15 of the Offences against the Person Act, 1861
(24 & 25 Vict. c. 100) (z).

Poisoning, Wounding, &e., with Intent to Murder.— By sect. 11 (a),
' Whosoever shall administer to or cause to he administered to or (h) to
be taken by any person any poison or other destructive thing, or shall
by any means whatsoever (c) wound {d) or cause any grievous bodily
harm (e) to any person, with intent in any of the cases aforesaid to commit
murder, shall be guilty of felony, and being convicted thereof shall be
liable ... to be kept in penal servitude for life . . . (/).

Use of Explosives with Like Intent. — By sect. 12 (g), ' Whosoever, by the
explosion of gunpowder or other explosive substance, shall destroy or
damage any building, with, intent to commit murder, shall be guilty of

{a;)3Repealedml827(7&8Geo.IV.c.27). P. 504. R. v. Duffill, 1 Cox, 49. E. v.

iy) Some old statutes, suoli as 5 Hen. IV. Elmsley, 2 Lew. 126, where the question

0. 5, and 22 & 23 Car. II. c. 1, though re- arose whether the bite of a dog was within

pealed in England, seem still to be in force 9 Geo. IV. c. 31.

as common law in America ; but generally (d) ' Wound ' was inserted as a general

speaking some State statute is substituted term including every ' stab ' or ' cut.' All

for the old English statutes. See Bishop, that is now necessary to allege in the indiot-

ii. ss. 1002, 1003, 1004. ment is, that the prisoner did wound the

(2) These sections do not apply to at- prosecutor ; and that allegation will be

tempts to commit suicide. R. v. Burgess, proved by any wound, whether it be a stab,

32 L. J. M. C. 55 ; L. & C. 258. out, or other wound. The words ' any

(a) Framed from 7 Will. IV. & 1 Vict. grievous bodily harm ' are inserted instead

0. 85, s. 2, with the modifications indicated of ' any bodily injury dangerous to life,' in

in italics. The words 'by any means order to render the clause more comprehen-

whatsoever ' were intentionally inserted sive. If in any case it be doubtful whether

to over-ride rulings under the former Act, the facts bring it within this clause, but

that wounding must be with some instru- there is evidence that the acts were done

ment. B.'W.BuUock.L.R. IC.C.R. 115, 117. with intent to murder, a count on s. 15,

(i) As to the introduction of these words, post, p. 841 , alleging an attempt to murder,

vide notes to s. 14, post, p. 841. should be added.

it was necessary to prove that the wound (/) For other punishments see 54 & 55

was with an instrument. See R. v. Jen- Vict. c. 69, s. 1, ante, pp. 211, 212. The

nings, 2 Lew. 130, Alderson, B. R. v. words omitted were repealed in 1892.

Payne, 4 C. & P. 558. R. v. Withers, ] (jr) Taken from 9 & 10 Vict. c. 25, s. 2.

Mood. R. 294. R. v. Smith, 8 C. & P. 173. In this and the next section, the words

R. V. MoLoughlin, 8 C. & P. 635. R. v. ' unlawfully and maliciously ' are omitted

Briggs, 1 Mood. 318. R. v. Sheard, 7 C. as unnecessary, and 'intent to commit

& P. 846. R. V. Lancaster, 2 Stark, Ev. murder ' substituted for ' intent to miirder

(3rd ed.), 692. R. v. Shadbolt, 5 C. & any person,'

CHAP. IIL]

Attempts to Oommit Murder.

841

to be kept in

felony, and being convicted thereof stall be liable .
penal servitude for life . . . ' {gg).

By sect. 13 (h), 'Whosoever shall set fire to any ship or vessel, or
any part thereof, or any part of the tackle, apparel, or furniture thereof, or
any goods or chattels being therein, or shall cast away or destroy any ship
or vessel, with intent in any of such cases to commit murder, shall be guilty
of felony, and being convicted thereof shall be liable ... to be kept in
penal servitude for life . . . ' (gg).

By sect. 14 (i), ' Whosoever shall attempt to administer to or shall
attempt to cause to he administered to or to be taken by any person any
poison or other destructive thing, or shall shoot (/) at any person, or
shall, by drawing a trigger or in any other manner attempt to discharge
any kind of loaded arms (k) at any person, or shall attempt to drown (Z),
suffocate, or strangle (m) any person, with intent, in any of the cases
aforesaid, to commit murder (w), shall, whether any bodily injury (o) be
effected or not, be guilty of felony, and being convicted thereof shall be
liable . . . to be kept in penal servitude for life . . . (gg).

By sect. 15 (p), ' Whosoever shall, by any means other than those speci-
iied in any of the preceding sections of this Act, attempt to commit
murder (q), shall be guilty of felony, and being convicted thereof shall
be liable . . . to be kept in penal servitude for life . . . (gg).

It is to be observed that the punishment under each of these

{gg) For other punishments see 54 & 55
Viot. 0. 69, s. 1, ante, pp. 211, 212. The
words omitted were repealed in 1892.

(h) Taken from 7 Will. IV. & 1 Vict.
c. 89, s. 4. The words in italics were
introduced for the same reason as it was
made felony to set fire to goods, &o., in
buildings. . As to setting fire, see post,
Vol. ii. p. 1775.

(i) Taken from 7 Will. 4 1 Vict. i;. 85,
s. 3. Where the prisoner delivered poison
to a guilty agent, with directions to him to
cause it to be administered to another in the
absence of the prisoner, it was held that the
prisoner was not guilty of an attempt to
administer poison within 7 Will. IV. & 1
Vict. 0. 85, s. 3 ; B. v. WiUiams, 1 Den. 39 ;
and the words ' attempt to cause to be ad-
ministered to or to be taken by,' were intro-
duced in this section to meet such cases.
Cf . E. V. Carr, R. & K. 377, and R. v. Harris,
5 C. & P. 159. ' The words ' whether any
bodily injury be effected or not,' are sub-
stituted for, ' although no bodily injury be
effected,' in order to prevent an objection
which might possibly have been raised on
an indictment under the former clause, if it
had appeared that any bodily injury had
been effected.' 0. S. G.

(?) Vide post, p. 842.

(Ic) See s. 19, post, p. 842.

(1) See R. V. Sinclair, 2 Lew. 49, where
the defendant in order to prevent boys
landing at a place where there was a dis-
puted right of ferry knocked holes in their
boat with a boathook, which caused the
boat to fill, and then pushed the boat arwa,y

from the shore.

(m) As to choking, &o., see post, p. 863.

(n) 43 Geo. III. c. 58, and 9 Geo. IV. c.
31, s. 12, contained provisoes now omitted
directing that if the offence were committed
under such circumstances that if death had
ensued the same would not have been
murder, the prisoner should be acquitted,
as otherwise if the person injured did not
die the punishment would be death, but not
so if he died.

(o) Vide post, p. 854.

(p) ' This section, which was new law in
1861, is meant to include every attempt to
murder not specified in any preceding
section. It therefore embraces all those
atrocious eases where the ropes, chains, or
machinery used in lowering miners into
mines have been injured with intent that
they may break and precipitate the miners
to the bottom of the pit. So also all oases
where steam engines are injured, seton work,
stopped, or anything put into them, in order
to kill any person, will fall within it. So
also cases of sending or placing infernal
machines with intent to murder. See R.
V. Mountford, 1 Mood. 441, 70. & P. 242.
Indeed every attempt to murder, which
perverted ingenuity may devise, or fiendish
malignity suggest, will fall within some
clause of this Act, and may be visited with
penal servitude for life. In any ease where
there may be a doubt whether the attempt
falls within the terms of any of the pre-
ceding sections, a count framed on this
clause should be added.' C. S. G.

iq) See note (d), ante, p. 840.

842 Attempts to Commit Murder. [bookix.

sections is the same, and the effect of all could have been obtained
by omitting the words " other than ... to Act," in sect. 15. Sect. 15
cannot be used to punish attempts specified in sects. 11-14.

Letters Threatening to Murder.— Sect. 16, which punishes written
threats to murder, is dealt with under the title ' Threats' post, Vol. II.
p. 1161.

Impeding Escape from Wrecks.— By sect. 17 (r), ' Whosoever shall
unlawfully and maliciously prevent or impede any person, being on board
of or having -quitted any ship or vessel which shall be in distress, or
wrecked, stranded, or cast on shore, in his endeavour to save his life,
or shall unlawfully and maliciously prevent or impede any person in Ms
endeavour to save the life of any such person as in this section first aforesaid,
shall be guilty of felony, and being convicted thereof shall be liable ... to
be kept in penal servitude for life ' . . . (rr).

Shooting or Attempting to Discharge Loaded Arms.— By sect. 19,
' Any gun, pistol, or other arms which shall be loaded in the barrel with
gunpowder or any other explosive substance, and ball, shot, slug, or other
destructive material, shall be deemed to be loaded arms within the
meaning of this Act, although the attempt to discharge the same may
fail from want of proper priming or from any other cause ' (s). In sects. 14,
18 {post, p. 853), and 19, the word ' arms ' clearly means ' fire arms ' (t).

The words ' any other cause ' in this section appear to cover not only
defects in the loading, &c., but also prevention by the acts of a bystander,
or of the person attacked. R. v. St. George [u), in which it was held that
a man was not guilty of an attempt to discharge a loaded pistol which he
had drawn, because it was snatched from his hand, was overruled in R.
V. Duckworth (v), where it was held that where a man pulled out a loaded
revolver and tried to fire it, but was forcibly prevented by the bystanders,
he had committed an offence within sect. 14.

In R. V. Lewis (w), an acquittal was directed where the weapon was
not in a condition to be discharged.

In R. V. Jackson (x), an attempt to fire a revolver loaded in six cham-
bers was held to be an offence within sect. 14, though it failed because the
hammer fell over a chamber containing an empty cartridge case. In

()-) Taken from 7 Will. IV. & 1 Vict. not seem to have been called to this

e. 89, s. 7. The words ' unlawfully and section.

maliciously ' are substituted for ' by force ' {t) Under 9 Geo. IV. c. 31, s. 11, a tin box

in the former Act. Under 7 Will. IV. & filled with gunpowder and peas was held

1 Vict. c. 89, s. 7, if A. were pulling B. out not to be a loaded arm. R. v. Mountford,

of the water, and C. prevented A. from 1 Mood. 441 ; 7 C. & P. 242. But to dis-

doing so, 0. would have been guilty of no charge the barrel of a gun when separated

offence except an assault. The words in from the stock by striking the percussion

italics were introduced to meet this and cap with a knife was held to be shooting,

similar oases. C. S. G. R. v. Coates, R. & R. 394 and MSS. C. S. G.

(rr) Tor other punishments see 54 & 55 Patteson, J., consulted several other judges

Vict. u. 69, s. 1, ante, pp. 211, 212. The who agreed with him in opinion, otherwise

words omitted were repealed in 1892. the point would have been reserved.

(«) This section was new law in 1861, and («) 9 0. & P. 483.

was intended to meet every case where a (v) [1892] 2 Q.B. 83.

prisoner attempts to discharge a gun, &c., {w) 9 C. & P. 523. The need for recon-

loaded in the barrel, but which misses fire sideration of this case was strongly suggested

for want of priming, or of a copper cap, or in R. v. Brown, 10 Q.B.D. 383, 385.

from any like cause. In R. v. Gamble, 10 (x) 17 Cox, 104, Charles, J.
Cox, 545, the attention of the Court does

CHAP, in.] Attemfts to Commit Murder. 843

R. V. Jones {y), it was held to be such attempt to pull the trigger of a
central fire revolver loaded with rim-fire cartridges.

In E. V. Kitchen (2;), where the prisoner was indicted under 43 Geo. III.
c. 58 (rep.) for shooting at the prosecutor with a loaded pistol, Le
Blanc, J., told the jury, that if it was loaded with powder and paper only,
but fired so near, and in such a direction, that it would probably kill or
do other grievous bodily harm, and with intent that it should do so, the
case was within the Act. The jury convicted, saying, they were satisfied
that the pistol was loaded with some other destructive material besides
powder and paper. There was a petition to the Crown, on the ground
that the pistol was loaded with powder and paper only. On a case
reserved the judges held this direction to be right.

In R. V. Whiteiey {a), where a similar indictment, under 9 Geo. IV.
c. 31, s. 11 (rep.), in different counts, alleged a gun to have been loaded
with shot and various destructive materials, and it appeared that a
watcher of game being out in the night, saw the prisoner crouching under
a wall, and said he knew him, when he instantly raised a gun to his
shoulder, and levelled it at him ; he stooped to avoid it, the gun went off,
and the charge, whatever it was, struck a hairy cap he had on his head, and
singed the hair. There was evidence of previous ill-will, and the prisoner
after his apprehension, had said, ' I did it, and I rued it the instant I
pulled the trigger.' A small bag of shot was found in the prisoner's
pocket after he was apprehended. It was objected that there was
no evidence to shew that the gun was loaded with shot, or any of the
destructive materials charged in the indictment, and Patteson, J., was
strongly of opinion that the objection ought to prevail ; and, after
consulting Alderson, B., he directed an acquittal.

The law seems to be that if a man does any act (such as pulling out a
loaded pistol and pointing it at a person, or fumbling with the trigger or
struggling to get free when seized and using words clearly indicating his
intention to use the weapon if he could (6) ) from which a jury might infer
that he intended to discharge it, he may be convicted under 24 & 25 Vict,
c. 100, s. 14, if his intent was to murder, or under sect. 18 {fost, p. 853), if
his intent was to do grievous bodily harm (c).

The prisoner was tried on an indictment under sects. 14 and 18,
charging him with feloniously attempting to discharge a certain revolver
loaded with gunpowder and leaden bullets, at one Houston, with the
intent, as alleged in one count, to murder him, as alleged in another, to
commit murder, and as alleged in a third, to do Houston grievous bodily
harm. The indictment did not contain the words ' by drawing a trigger '
nor did it specify any other manner in which the attempt was made. The
prisoner was convicted on the third count. In the course of an interview
the prisoner put his hand in his pocket and commenced to pull out some-
thing, which tamed out to be a revolver loaded in five barrels. Before he
could get it completely out, Houston sprang on him. The prisoner had

(y) 36 L. J. (Newsp.) 650. Kennedy. J., (a) 1 Lew. 123. See Blake v. Barnard,

seems to have thought that if the prisoner 9 C. & P. 626, post, p. 880.
knew the cartridge could not be discharged (6) R. v. Linnaker [1906], 2 K.B. 99.

he would not be guilty. (c) B. v. Brown, 10 Q.B.D. 381. R. v.

[z) R. & R. 95, and MS. Bayley, J. Duckworth [1892], 2 Q.B. 83.

S44 Attemfts to Commit Murder. [BooKix.

by this time got the revolver out of his pocket. Houston and the prisoner
struggled for a few minutes. During the struggle the prisoner said several
times ' You 've got to die.' Eventually Houston wrested the revolver
from the prisoner. A case was reserved as to whether there was evidence
of an attempt within sections 14 & 18. The Court (Lord Alverstone,
C.J., Kennedy, Eidley, Darhng and Walton, JJ.) upheld the conviction.
Kennedy, J., added : ' It is, however, important to bear in mmd that in
cases under this section, there must be evidence both of an attempt to
discharge the weapon and of an intent to do grievous bodily harm, and,
although an attempt implies the intent, an intent does not necessarily
imply an attempt. There may be cases which are very near the line as
regards the attempt, although there is no doubt as to the intent. It is
always necessary that the attempt should be evidenced by some overt act
forming part of a series of acts which, if not interrupted, would end in
the commission of the actual offence {d). .

Shooting at large.— On an indictment for shooting at a person
unknown with intent to murder him, it appeared that the prisoner, being
irritated at a crowd of boys, who were following him, discharged a loaded
pistol among them, and thereby wounded a person who was passing along
the street ; there was nothing to shew any intent to shoot at any parti-
cular person, nor was the person injured one of those who were teasing
him. Jervis, C.J., (Alderson, B., being present), said : ' I do not think
that the charge contained in this indictment is proved ; doubtless at
common law, if the person wounded had been killed, it would have been
murder : but this is an offence under the statute, and must be proved
strictly in its very terms.' It was then proposed to amend the indict-
ment, by charging the prisoner with an intent to murder in the words of
7 Will. IV. & 1 Vict. c. 85, s. 2. Jervis, C.J., said : ' That would no
doubt be a good indictment after verdict under 7 Geo. IV. c. 64, s. 20,
being in the words of the statute ; but it may be a question whether it
would not be demurrable for generality. We think that if we amend,
we ought to do it in such a manner as that the indictment shall not be
in any way defective. The prisoner has pleaded, and he ought to have
an opportunity of demurring, which now of course he cannot do. We
must therefore refuse the application ' (e).

The prisoner was indicted for shooting at L. with intent to do him
grievous bodily harm. The prisoner had been assaulted and annoyed by
several persons, among whom was L. These persons were standing to-
gether in a group of about fifteen, and the prisoner fired a pistol into the
group, and L. received some severe shot wounds in the neck. The jury
found that the prisoner did not aim at L., or at any one in particular,

{d) R. V. Linnaker, ante, p. 843. ed.) iii. 691). I still venture to submit

(e) R. V. Lallement, 6 Cox, 204. Mr. that it is extremely questionable whether

Greaves on this case says : ' It is clear that the indictment would not be equally bad

after the amendment the jury might have after verdict, and I doubt whether any case

been discharged under 14 & 15 Viot. u. 100, can ooour where an indictment may not be

8. 1, and the Court might then have given so framed as to meet the facts, and avoid

the prisoner leave to withdraw his plea and the necessity for such a count ; for wher-

demur to the amended indictment. This ever it is possible to prove an intent to

case as to the general allegation being murder any person, it is plain a count may

insufficient on demurrer, accords with my be framed to meet that case.'
former note (Russell, Cr. and M. (6th

CHAP. III.] Attempts to Commit Murder. 845

but that he fired into the group, intending generally to do grievous bodily
harm, and so unlawfully wounded. Upon a case reserved, it was held
that he was rightly convicted of the felony (/).

Upon an indictment under 9 Geo. IV. c. 31, s. 12, for mahciously
shooting at C, it appeared that the prisoner fired into a room of C.'s
house where he supposed C. was; C. was in another part of the house,
where he could not by possibility be reached by the shot. Gurney, B.,
suggested that a man could scarcely be said to be shot at who was not
near the place where the gun was fired. R. v. Bailey (E. & R. 1) was
then cited for the prosecution, where, on an indictment for shooting at
H. T., who was wounded with grape-shot out of a gun fired at a ship in
which he was, Lord Eldon told the jury that he was of opinion, that if
they thought the guns were fired at the vessel, and those on board her
generally, that the guns might be considered as shot at each individual
on board her, and therefore at H, T., the person named in the indictment :
Gurney, B., ' That case is perfectly distinguishable from the present ;
cannon-shot fired into a ship more or less endangers every individual in
it ; every part of the ship may be penetrated by cannon-shot ; but that
cannot be said of shot fired from a gun into a room where it is proved no
individual then was ' (g).

Where on an indictment for shooting at the prosecutor with intent
to maim, &c., it appeared that the prisoner had at various times been
annoyed by night by idle persons attempting to frighten him, and the
prosecutor returning home by night, passed near the prisoner's house with
a lantern ; the prisoner, seeing the light, thought that his nightly visitors
had again appeared, reached his gun, and fired in the direction of the
light, and wounded the prosecutor in the face : Patteson, J., thought
that the facts would hardly bear out the charge in the indictment Qi).

Wound. — The word 'wound' was introduced in 1837 to obviate
difiiculties which arose in the construction of the words 'cut' and
' stab ' in the Act of 1828 ; and in the Act of 1861 the latter words were
advisedly omitted as being included in the word 'wound' (i). It is now
immaterial by what means the wound is given, and the means need not
be stated in the indictment {ii).

In Moriarty v. Brookes (j), Lord Lyndhurst said that the ' definition
of a wound, in criminal cases, is an injury to the person, by which the
skin is broken. If the skin is broken, and there was a bleeding, it is a
wound.' In E. v. Withers (k), upon an indictment for cutting and
wounding, with intent to murder, it appeared that the prisoner threw a

(/) B. V. Fretwell, L. & 0. 443. B. v. 1 Mood. 318, decided on 9 Geo. IV. c. 31,
Lallement, ante, p. 844, does not appear to s. 12 (rep.). Cf. HoUoway v. B. 17 Q.B. 317,
have been cited. See B. v. Stopford, 11 and B. v. Erie, 2 Lew. 133, Coleridge, J.
Cox 643. B. V. Jarvis, 2 M. & Bob. 40. B. v. Piatt, 69 J. P. 424.
B V Lewis 6 C. & P. 161. (m) See Greaves, Crim. Cons. Acts {2nd

(g) B. V. Lovell, 2 M. & Bob. 39. ed.) 25. „, ^ ,-,

Ih) B V. Porter, 5 Cox, 148. The (j) 6 C. & P. 684. In B. v. Wood (1

prisoner was convicted of an assault. A Mood. 278.) 4 C. & P. 381 ; it was held by
question was raised in B. v. Turner, 2 M. & all the judges except Bayley and Park that
Bob 213 whether the facts shewed an striking a man with an u:on bar and hammer
intent to maim the prosecutor ; but Patte- whereby his collar-bone had been broken was
son J expressed no opinion on it. not a wound within 9 Geo. IV. c. 31, s. 12.

(i) Whether with a weapon or instru- (k) 1 Mood. 294 ; 4 C. & P. 446.

ment, a blow or a kick. See E. v. Briggs,

846 Attempts to Commit Murder. [bookix.

tammer at the prosecutor, and hit him over his right eye and nose, and
made a wound on the eye, and by the side of the nose ; his head was very
bloody ; the hammer was a blacksmith's finishing hammer ; one end of
it round, and the surface flat, the other end sharp, to draw out with.
Upon a case reserved, the judges were unanimously of opinion that the
injury stated in the case amounted to a wound within the statute.

In E. V. Beckett (Z), it appeared that the prisoner attacked the prose-
cutor with a butcher's knife, and, drawing him backwards, attempted to
cut his throat. The prosecutor succeeded in warding off all hurt except
what he described as a slight scratch on his throat, by lifting his two
hands up to his throat, but in doing this his hands struck against the
knife and were cut. Parke, B., said : ' A scratch is not a wound within
the statute ; there must at least be a division of the external surface of
the body ; the cuts on the hands are indeed wounds ; but it appears that
they were inflicted by the prosecutor himself in the attempt to defend
himself from the prisoner's attack ; those cuts, therefore, cannot be con-
sidered wounds inflicted by the prisoner with intent to murder or maim
the prosecutor.'

In R. V. McLoughhn (m), a medical man stated that there was a
slight abrasion of the skin, not exactly a wound, but an abrasion of the
cuticle ; it did not penetrate farther than that ; the cuticle is the upper
skin ; blood would issue, but in a different manner, if the whole skin
was cut. Coleridge, J. (Bosanquet and Coltman, JJ., being present),
told the jury : ' It is essential for you to be quite clear that a wound was
inflicted. I am inclined to understand, and my learned brothers are of
the same opinion, that if it is necessary to constitute a wound that the
skin should be broken, it must be the whole skin ; and it is not sufficient
to shew a separation of the cuticle only. You will, therefore, have to
say on the first three counts whether there was a wounding in the sense
in which I have stated, viz., was there a wound — a separation of the
whole skin ? '

In R. V. Smith (n), a surgeon stated ' that the lower jaw on the left
side was broken in two places ; the skin was broken internally, but not
externally ; there was not a great deal of blood ; one fracture was near
the chin, and the other near the ear.' The prisoner had struck the
prosecutor with a hammer on the left side of the face, but there was no
wound on the outside of the face. It was objected that this was not a
wounding within 7 Will. IV. & 1 Vict. c. 85. Park, J. said : ' When I first
read the deposition I thought there might be some doubt. In consequence
of this, I consulted with my Lord Chief Justice, and considered the ques-
tion very much in my own mind, and we are of opinion that it is a wound-
ing within the meaning of the Act.' Denman, C.J. : ' If it is the
immediate effect of the injury, we think we cannot distinguish this from
the cases which have been already decided.' Park, J., in summing up :
' A question was very properly put to us, as to whether we thought there
was a wound within the meaning of the statute. We were of opinion that
there was a wound ; and upon consideration, I am more strongly of that
opinion than I was at the outset. There must be a wounding ; but if

{I) 1 M. & Rob. 526. (m) 8 C. & P. 635. («) 8 C. & P. 173.

CHAP. III.] Attempts to Commit Murder. 847

there was a wound (that is, if the skin is broken, whether there be an
effusion of blood or not), it is within the statute, whether the wound is
internal or external.'

In K. V. Jones (o), on an indictnaent for wounding with intent to do
grievous bodily harm, it appeared that the prisoner had given the pro-
secutrix a violent kick in the private parts, and that it had been followed
by an occasional discharge of blood mingled with urine, but the surgeon
could not say from what precise vessels the blood originally flowed.
Patteson, J., held that the charge was not sustained ; there might
have been no lesion of any vessels at all ; but the blood might have been
discharged simply from natural causes.

In R. V. Waltham (p), on a similar indictment, it appeared that a
policeman had received a violent kick on his private parts, and the
external skin was unbroken, but the lining membrane of the urethra
was ruptured, which caused a small flow of blood, mingled with urine,
for two days. Cresswell, J., held that this case was very different from
the preceding, and that there was a wounding within the statute.

In R. V. Warman (q), there was no external breach of the skin,
but a collection of blood between the scalp and the cranium just above
the spot where within the cranium there was an extravasation of blood
pressing on the brain, and the surgeon called it a contused wound with
effusion of blood. The internal part of the skin was broken. Medically
the breaking of the skin, whether internally or externally, is a wound.
It was held that this internal wound was a sufficient wound to
support the allegation of a wound in an indictment for murder, whether
it would have been so or not on an indictment on the statute for
wounding with intent, &c.

In R. V. Sheard (r) it appeared that the prisoner struck the prosecutor
with an air-gun twice on the left side of a thick hat that he had on his
head. The prosecutor had a contused wound on the left side of his head,
which was made by the hard rim of the prosecutor's hat, by the violence
with which the hat was struck by the prisoner, and was not occasioned
by the gun alone, as the prosecutor said the gun had never come directly
in contact with his head. Upon a case reserved upon a doubt
whether, as the wound must have in fact have been caused by the hat,
and not by the gun barrel, the prisoner ought to have been convicted,
the conviction was held right.

In R. V. Day (s), an indictment for wounding with intent to maim, &c.,

the prosecutor proved that he endeavoured to persuade the prisoner to

leave a public-house, and that the prisoner knocked him over a form with

his fists, in one of which he appeared to have some instrument ; when the

prosecutor recovered his legs, he put forth his hand to ward off the attack

of the prisoner, and in so doing he pushed it against the right hand

of the prisoner, in which was a penknife, which ran into the prosecutor's

finger just deep enough to bring blood. The prisoner seemed to hold the

knife in his hand, and to use it as if he was attempting to cut the frock of

the prosecutor, and the frock bore three long marks as if it had been slit

(o) 3 Cox, 441. (r) 7 C. & P. 846.

(p) 3 Cox, 442. (s) 1 Cox, 207. Of. R. v. Beckett, 1 M.

(j) 1 Den. 183. & Bob, 626, ante, p. 846.

848 Attempts to Commit Murder. [bookix.

downwards by cuts from the knife, and there were several scars through
which the knife had not penetrated. Parke, B., held that there was an
end to the charge of felony, as the prosecutor's hand came in contact
with the knife at a moment when no intention existed in the mind of the
prisoner to inflict any wound on his person.

In R. V. Spooner (t), on an indictment for wounding with intent
to do grievous bodily harm, it appeared that the prisoner knocked the
prosecutor down with a stick on a tram-road ; and it was contended that
the wound was caused by the fall on the iron trams. Talfourd, J., told
the jury, that in order to convict the prisoner the wound must be direct,
and if they should be of opinion that the injury was the result of a fall,
although occasioned by a blow from the prisoner, that would not be
sufficient.

Proof of Intent. — Upon an indictment for shooting, or wounding, or
administering poison, &c., to another, with intent to murder him, or to
do him some grievous bodily harm, ' whether the act was done by the
prisoner, with the particular intention wherewith it is charged to have been
done, is, as in other cases of specific malice and intention, a question for
the jury. The inference upon this important point, as in other cases of
malicious intention, must be founded upon a consideration of the situation
of the parties, the conduct and declarations of the prisoner, and, above
all, on the nature and extent of the violence and injurious means he has
employed to effect his object. In estimating the prisoner's real intention,
it is obviously of importance to consider the quantity and quality of the
poison which he administered, the nature of the instrument used, and,
the part of the body on which the wound was inflicted, according to the
plain and fundamental rule, that a man's motives and intentions are to
be inferred from the means which he uses and the acts which he does.
If. with a deadly weapon, he deliberately inflicts a wound upon a vital
part, where such a wound would be Ukely to prove fatal, a strong inference
results that his mind and intention were to destroy. It is not, however,
essential to the drawing of such an inference, that the wound should have
been inflicted on a part where it was likely to prove mortal ; such a
circumstance is merely a simple and natural indication of intention, and
a prisoner may be found guilty of a cutting with an intention within the
statute, although the wound was inflicted on a part where it could not have
proved mortal, provided the criminal intention can be clearly inferred
from other circumstances ' (u).

Intent to Commit Murder.— The common element in sects. 11-15, is
the ' intent to commit murder,' generally. Under the Act of 1828 (9
Geo. IV. c. 31), s. 11, it seems to have been necessary to allege an intent
to murder a particular person, which caused difficulties in cases where
poison meant for A. was taken by B., or a shot aimed at A. hit B. (v).

(<) 6 Cox, 392. succeeded in reaching a vital part.' — Note

(u) R. V. Case, York. Sum. Ass. 1820, by Mr. Starkie.
cited 2 Stark. Ev. (3rd ed.) 692, note {h), (v) In R. v. Ryan, 2 M. & Rob. 213,
where Park, J., said that it had been so held Parke and Alderson, BB., declined to allow-
by the judges. ' It is obvious that a case a conviction on an indictment for causing
may fall both within the letter and the poison to be taken by G. on evidence that
spirit of the statute, although from acci- the poison was intended for G. but was
dent or from ignorance the prisoner has not taken by C, but directed a fresh indictment

CHAP. III.]

Attempts to Commit Murder.

849

It is generally considered that under the existing enactments a count
alleging a general ' intent to commit murder ' is good (w).

It is a very important question, whether on a count charging an
intent to murder, it is essential that the jury should be satisfied that
that intent existed in the mind of the prisoner at the time of the offence,
or whether it is suflScient that it would have been a case of murder had
death ensued (x) ; and this question does not seem to be completely
settled. In E. v. Cruse (y), where a man was indicted for inflicting an
injury dangerous to life on a child, with intent to murder it, and his wife
as principal ia the second degree, for aiding and abetting him, where it
appeared that the prisoners had inflicted great violence on the child,
Patteson, J., told the jury, ' Before you can find the prisoner, T. C,
guilty of this felony, you must be satisfied that when he inflicted this
violence on the child, he had in his mind a positive intention of murdering
that child. Even if he did it under circumstances which would have
amounted to murder if death had ensued, that will not be sufficient,
unless he actually intended to commit murder. With respect to the wife,

to be prepared alleging the intent to be to
commit murder generally, upon whioli the
defendant was convicted and sentenced.
They doubted R. v. Lewis, 6 C. & P. 161,
decided on 9 Geo. IV. e. 31, s. 11, where
Gumey, B., on a similar indictment and
similar evidence had said : ' The question
is, whether the prisoner laid this poison on
the shop counter, intending to kill some one.
If it was intended for Mrs. Daws, and finds
its way to Mrs. Davis, and she takes it, the
crime is as much within this Act of Parlia-
ment as if it had been intended for Mrs.
Davis. If a person sends poison with in-
tent to kill one person, and another person
takes that poison, it is jxist the same as if it
had been intended for such other person.'
{w) See Archb. Or. PI. (23rd ed.), 815.
Mr. Greaves' note on the subject is as
follows : ' Where a mistake of one person
for another occurs, the cases of shooting,
&c., may, perhaps, admit of a different
consideration from the oases of poisoning.
In the case of shooting at one person under
the supposition that he is another, although
there be a mistake, the prisoner must intend
to murder that individual at whom he
shoots ; it is true he may be mistaken in
fact as to the person, and that it may be
owing to such mistake that he shoots at
such person, but still he shoots with intent
to kill that person. So in the case of
cutting ; a man may cut one person under
a mistake that he is another person, but
still he must intend to murder the man
whose throat he outs. In E. v. Mister,
Salop Spr. Ass. 1841, cor. Gumey, B., the
only count charging an intent to murder
was the first, and that alleged the intent to
be to murder Mackreth ; and although on
the evidence it was perfectly clear that
Mister mistook Mackreth for Ludlow, whom
he had followed for several days before, yet

VOL. I.

he was convicted and executed, and I be-
lieve the point never noticed at all. The
case of poisoning one person by mistake for
another, seems different, if the poison be
taken in the absence of the prisoner ; for in
such case he can have no actual intent to
injure that person. These difficulties, how-
ever, seem to be obviated by 1 Vict. c. 85
(see now 24 & 25 Vict. o. 100, s. 11), which
instead of using the words ' with intent to
murder such person,' have the words ' with
intent to commit murder. ' It may perhaps
be doubted whether this alteration Tvas not
intended to enable the prosecutor to charge
a shooting at one person with intent to
murder another person ; and doubts may
perhaps be entertained, notwithstanding
the very great weight due to any opinion of
the judges in E. v. Eyan {supra), whether a
count, stating a shooting with intent to
commit murder, would not be bad on
demurrer, and in arrest of judgment, for not
stating the person intended to be murdered.
It is true that it would follow the words of
the Act ; but in many cases that is not
sufficient. Thus in B. v. Martin, 8 A. c& E.
481, it was held that an indictment for ob-
taining goods by false pretences was bad on
error, on the ground that it did not state
that the goods obtained were the property
of any person. In all oases of doubt as to
the intention, it would be prudent to insert
one count for shooting at A. with intent to
murder him ; another ' with intent to com-
mit murder ' ; and a third for shooting at
A. with intent to murder the person really
intended to be killed ; and if the party in-
tended to be killed were unknown, a count
for shooting at A. with intent to murder
a person to the jurors unknown.

(x) E. V. Jones, 9 0. & P. 258, Patteaon,
J.

(«/) 8 C. & P. 541.

850 Attempts to Commit Murder. [book IX.

it is essential not only that she should have assisted her husband in the
commission of the offence, but also that she should have known that it
was her husband's intention to commit murder.' In R. v. Jones (z),
where the first count charged the prisoner with shooting at Vaughan
with intent to murder hilii, and the facts were such as only to amount to
Qianslaughteil, the same judge said, in summing up, ' It is a very important
question, whether On a count charging an intent to murder, it is essential
that the jury should be satisfied that that intent existed in the mind of
the prisoner at the time of the offence, or whether it is sufficient that it
would have been a case of murder if death had ensued. However, if it
be necessary that the jury should be satisfied of the intent, I have no
doubt that the circumstance, that it would have been a case of murder
if death had ensued, would be of itself a good ground from which the
jury might infer the intent, as every one must be taken to intend the
necessary consequences of his own acts. In the present case, I think
you may dismiss the first count from your consideration, as it would be
very difficult to say, that if Mr. Vaughan had died, this would have been
a case of murder.

Upon an indictment for feloniously wounding with intent to murder,
disable, &c., it appeared that the prisoner, being confined in gaol, knocked
the turnkey down by a blow on the head with a towel-roller, and thereby
wounded him. He did this in order to effect his escape. In summing up,
Maule, J., said ; ' If the prisoner had killed this man it would have been
murder, whether he intended to kill him or not ; but I think that there
is hardly evidence here to support the charge of an intent to murder.
A person cannot have an intent to murder, or an intent to do any other
thing, without intending to commit mutder, or to do that other thing.
It would be a contradiction in terms if it were otherwise. You will,
therefore, consider whether the prisoner had an intent to kill this man,
or only an intent to disable him, or to do him some grievous bodily
harm ' (a).

So where upon an indictment iot attempting to suffocate and strangle
with intent to murder, it appeared that the prisoner had put a bed over
his wife, and pressed it down upon her, and put a rope round her neck
with a running noose on it, by which she was nearly prevented from
breathing ; Maule, J., told the jury, that in many cases a party might be
guilty of murder' if he caused the death by an illegal act, although at the
time he did not actually intend to kill, and that in this case the'prisoner
would have been guilty of murder if his wife had died : but upon this
indictment the jury must be satisfied that at the time the prisoner did
the acts in question, he did intend to murder his wife (6). And in a
later case, Coleridge, J., told the jury that the words •' with intent to
commit murder ' meant ' with intent to kill under such circumstances as
would amount to the crime of murder, if death ensued ' (c).

Upon an indictment for wounding with intent to murder, &e., it
appeared that the prosecutor had given evidence against some wood-
stealers, with whom the prisoner was intimate ; the prisoner struck him
{z) 9 C. & p. 258. 1843. MSS. C. S. G.

(a) R.«. Bourdon 2 0. &K. 366. (c) R. v. Dayies, Gloucester Spr. Ass.

(6) R. V. Caldeoott, Hereford Sum, Ass. 1844. M>SS. C, S. G.

CHAP, m.] Attempts to Commit Murder. 851

with a tin can four times on the head, knocked him about, and said he
would break his neck ; and there were two cuts on the prosecutor's
scalp, which laid his skull bare. Alderson, B., in summing up, said : ' You
wiU have to consider in this case whether, if death had ensued, the prisoner
would have been guilty of murder ; and in giving your judgment on that
question, you will have to consider whether the instrument employed
was, in its ordinary use, likely to cause death ; or though an instrument
unlikely under ordinary circumstances to cause death, whether it was
used in such an extraordinary manner as to make it likely to cause death,
either by continued blows or otherwise. A tin can, in its ordinary use,
was not likely to cause death or grievous bodily harm ; but, if the
prisoner struck the prosecutor repeated blows on the head with
it, you will say whether he did this merely to hurt the prosecutor
and give him pain, as by giving him a black eye or a bloody nose, or
whether he did it to do him some substantial grievous bodily harm. The
former enactments on this subject were confined to cutting instruments,
and perhaps wisely ; but now the matter is much more vague, and cases
ought therefore to be watched carefully. When a deadly weapon, such
as a knife, a sword, or gun, is used, the intent of the party is manifest ;
but with an instrument like the present, you must consider whether the
mode in which it was used satisfactorily shews that the prisoner intended
to inflict some serious or grievous bodily harm with it ' (d).

Upon an indictment for administering opium with intent to commit
miirder, it appeared that the prosecutrix had been left in charge of her
master's house, and going out into the yard at night the prisoners threw
her down, and said they would kill her if she did not swallow some stuff
out of a phial which they held to her mouth, and which stufi the evidence
tended to prove was a preparation of opium. She struggled, but was
compelled to swallow it ; they then tied her apron tight over her face,
and left her lying on her back in the yard. She was afterwards found
almost insensible and very ill : by proper treatment she recovered in a
few days ; but there was reason to conclude, that had she remained much
longer undiscovered, her life would have been in very great peril. When
her master returned he found the house robbed. For the prosecution it
was contended, that if the main object of the prisoners was to steal from
the house, and in order to effect that they committed an act in itself
unlawful, they must be taken to have intended all the consequences
likely to result from such act, and death was one of those consequences :
it was immaterial which was the principal and which the subordinate
intent. Coltman, J., told the jury that ' it would undoubtedly appear
probable that one intention of the prisoners was to rob the house ; but
they might have had that intention and also another, namely, to destroy
life ; and if a noxious drug is administered, which is likely to occasion
death, and the party administering it is indifferent whether it occasion
death or not, that party must be looked upon as contemplating the
probable results of his own action ' (e).

{d) E. V. Hewlett, 7 C. & P. 274. This case would fall within 24 & 25 Vict,

(e) R. V. Dilworth, 2 M. & Rob. 531. c. 100, 9. 22, post, p. 863.

3l2

852 Of Causing Bodily Harm. [BooKix.

Sect. III. — Op Unlawful Acts causing oe intended or

CALCULATED TO CAUSE BODILY HaEM.

A. Common Law.

Mayhem. — Mayhem, or the maiming of persons, was probably at
one time a felony at common law, as the judgment was membrum fro
membra (/). But this judgment afterwards went out of use; partly
because the law of retaliation is at best an inadequate rule of punish-
ment (g). The offence, therefore, appears to have been considered in
later times, as a misdemeanor ; and the only judgment which now
remains for it at common law is fine and imprisonment (h). It is,
however, spoken of by Coke as the greatest offence under felony {i).

A bodily hurt whereby a man is rendered less able in fighting, to
defend himself or to annoy his adversary, is properly a maim at common
law (j). Therefore cutting off, or disabling, or weakening a man's hand
or finger, or striking out his eyes or foretooth, or depriving him of those
parts, the loss of which, in all animals, abates their courage, are held to
be maims ; but the cutting off his ear, or nose, or the like, are not held
to be maims at common law ; because they do not weaken a man, but
only disfigure him (k). In order to support an indictment for mayhem the
act must be done maliciously, though it matters not how sudden the
occasion (Z).

If a person maims himself in order to have a more specious pre-
tence for asking charity, or to prevent his being impressed as a sailor, or
enlisted as a soldier, he may be indicted ; and, on conviction, fined and
imprisoned (m). For as the life and members of every subject are under
the safeguard and protection of the King ; so they are said to be in manu
regis, to the end that they may serve the King and country when occasion
shall require (n).

It would seem that there can be no accessories before the fact in
mayhem, at common law ; though there appears to have been some
difference of opinion, or rather misapprehension, upon the subject (o).
For, supposing the offence to be a misdemeanor only, the rule wiU apply,
that in crimes under the degree of felony there can be no accessories, but

(/) 3 Co. Ihst. 118. 1 Hawk. C. 55, s. 3. anno 1 Jacdbi regis, in the county of

4 Bl. Com. 206. Leicester, one Wright, a young, strong, and

(g) 4 Bl. Com. 206. luatie rogue, to make himself impotent,^

(h) Id. ibid. 1 Hawk. c. 55, s. 3. 1 thereby to have the more colour to begge,

East, B.C. 393. But it is observed, that or to be relieved without putting himself to

perhaps mayhem by castration might have any labour, caused his compaooion to strike

continued an offence of higher degree, as off his left hand ; and both of them were

all our old writers held it to be felony. 4 indicted, fined, and ransomed.'

Bl. Com. 206. (n) Co. Litt. 127 a. Bract. Ub. 1, fol. 6.

(i) Co. Lit. 127 o. Pasch. 19 Edw. I cor. Beg. Rot. 36, Northt.

(j) Staundf. 3. Co. Lit. 126. 3 Co. Inst. (o) Hale (1 B.C. 613) states that there

62, 118. 1 Hawk. c. 55, s. 1. 4 Bl. Com. are no accessories before in mayhem, but

205. 1 East, B.C. 393. that they are in the same degree as prin-
(k) 1 Hawk. c. 55, s. 2. 4 Bl. Com. 205, cipals. Hawkins, on the contrary, says,

206. 1 East, B.C. 393. Bac. Abr. 'Maihem' that it seems there may be accessories be-
(A.). fore the fact in mayhem. 2 Hawk. u. 29,

(I) 1 East B.C. 393. s. 5. In 1 East, B.C. 401, there is a learned

(to) 1 Hawk. c. 55, s. 4, and Co. Litt. argument to shew that the latter opinion
127 a, where Coke says, ' In my circuit, proceeded on a mistake.

CHAP. III.] Felonious Wounding. 853

that all persons concerned therein, if guilty at all, are principals (p).
It does not appear to have been anjrnrhere supposed that there can be
accessories after the fact in mayhem (q).

Maiming is not now indicted at common law, but under the enact-
ments next to be noticed.

B. Statuies.

Felonious Wounding— By 24 & 25 Vict. c. 100, s. 18 (r), ' Whosoever
shall unlawfully and maliciously by any means whatsoever (s) wound (t) or
cause (u) any grievous bodily harm to any person, or shoot at any person {v),
or, by drawing a trigger or in any other manner, attempt to discharge
any kind of loaded arms (w) at any person, with intent, in any of the cases
aforesaid, to maim, disfigure, or disable any person, or to do some other
grievous bodily harm to any person (x), or with intent to resist or prevent
the lawful apprehension or detainer of any person, shall be guilty of
felony, and being convicted thereof shall be liable, ... to be kept in
penal servitude for life' . . . (y). Under this section the intent to
maim, &c., is an essential element in the offence and must be charged and
found (z), and the malicious intent must be found (zz).

Where D. at night heard a person in her house, and reasonably believ-
ing that he was there for a felonious purpose, shot at him with intent to
frighten him, and hit him ; it was held that D. had not committed an
ofience within sect. 18 (a).

Shoot and Wound. — The decisions as to these words are collected,
ante, pp. 842-848.

Intent to Maim, Disfigure, or Disable, or to do some other Grievous
Bodily Harm. — The meaning of the word ' maim ' is stated, ante, p. 852.
' Disfigure ' appears to mean an external injury which may detract from

(p) Ante, p. 138. be inconsisteiit with R. v. Hunt, 1 Mood.

(?) 1 Hawk. o. 55, s. 13. 2 Hawk. c. 29, 93, and R. v. Smith, 1 Cox, 51.

s. 5. 1 East, P.C. 401. («) Vide ante, p. 840, note (a).

(r) Taken from 7 Will. IV. & 1 Viot. c. 85, [t) Vide ante, p. 845.
s. 4. The words in italics at the beginning (u) An indictment under this section
of this section were introduced to make it charging the prisoner that he did ' inflict '
correspond with o. 11, ante, p. 840. As grievous bodily harm has been held good,
to the word ' wound,' see the note to that R. v. Bray, 15 Cox, 197 (0. C. R.). The
section. The word ' any ' is substituted in word ' inflict ' is used in s. 20, post, p. 859.
two places for ' such ' in order to provide {v) It was suggested that where an
for cases where the prisoner wounds, &c., effectual exchange of shots took place in a
A., when he intends to wound B., and the deliberate duel both parties might be con-
like. In R. V. Hewlett, 1 F. & F. 91, where victed under 43 Geo. III. c. 58 of mahoi-
on an indictment under 7 WUl. IV. & 1 ously shooting. 3 Chit. Cr. L. 848, note (w).
Vict. c. 85, s. 4, for wounding with intent to Shooting or attempting to shoot in duels
do grievous bodily harm to the prosecutor, seems to fall within s. 18. See R. v.
it appeared that the prisoner with a knife Douglas, C. & M. 193.
struck at Withy, and the prosecutor inter- (w) Defined in sect. 19, q. v. ante, p. 842.
fered and caught the blow on his arm ; (a;) Vide ante, note (r).
Crowder, J., held that this would not sus- (y) For other punishments, see 54 & 55
tain the charge ; but the prisoner might be Vict. 69, s. 1, ante, pp. 211, 212. The
convicted of rmlawfully wounding. There words omitted are repealed,
was no intent to injure the person wounded; {z) Fifie Archb. Cr. PI. (23rd ed.) 841.
it is therefore quite different from the cases {zz) See Slaughenwhite v. R. [1905], 9
where, though there is a mistake as to the Canada Or. Gas. 173.

person, the injury is intended for the per- (a) R. v. Dennis, 69 J. P. 352, Fulton,

son on whom it falls. This case is doubted Recorder,
in E. V. Stopford, 11 Cox, 643, and said to

854 Of Gaming Bodily Harm. [book ix.

personal appearance, such as slitting nose or ears (6). The word ' disable '
in 43 Geo. III. c. 58, s. 1 (rep.) was held to mean permanently and not
temporarily disable (c). But for the words in the statute, ' to do some
other grievous bodily harm,' it would be unnecessary in any indictment
to charge an intent to maim, disfigure, or disable.

' Bodily harm ' is not defined. It may mean internal as well as
external injuries (d) and need not be permanent, nor dangerous, nor
amount to maiming, disfigurement, or disablement. It is not grievous
unless it seriously interferes with health or comfort (e). The following
decisions on enactments superseded by 24 & 25 Vict. c. 100, ss. 11-15,
18, are of some value as a guide on the question of the various
intents.

On an indictment for wounding with intent to murder, maim, disable,
or do some grievous bodily harm, it appeared that the prisoner's goods
had been distrained for rent, and one of the broker's men turned out of
the room, and the broker said, ' Break the door open and go in and take
possession again ; ' and the prisoner said, ' he would split open the head
of any person who opened the door ' ; the door was then forced open,
and as the prosecutor was entering the room, the prisoner, who had an
axe in his hand, struck him on the head with it and inflicted a cut of
about a quarter of an inch, and a graze of about half an inch on the fore-
head ; the axe had cut through the skin and flesh, but very little below
the surface of the skin. Parke, B., told the jury ' there was no proof of
an intent to maim and disable, as the blow was aimed at the head of the
prosecutor ; it would have been otherwise if it had been aimed at his
arm to prevent him being able to use it. The question, therefore, was,
whether there was a wounding with intent either to murder the
prosecutor or to do him some grievous bodily harm (/).

On an indictment for shooting at M., with a gun loaded with powder
and blood, with intent to do grievous bodily harm, it appeared that M.
was preaching in church when the gun was fired through a hole previously
cut in the window : he was struck on the temple, knocked back and
stunned ; his face being sprinkled with blood ; there was no wound, but
grains of powder were embedded in the forehead ; the eye was weak, and
the effect of the blow felt for two months after. The surgeon said that
had the charge struck the eye, or a place nearer to the eye, the result
would have been much more serious ; Willes, J., told the jury, ' You
must be satisfied that the prisoner had an intent to do grievous bodily

(6) The words ' intent to maim or dis- inch iti length, not deep nor dangerous,

figure ' are derived from Sir John Coventry's because below the hymen ; but if it had

Act, 22 & 23 Car. II. c. 1, s. 7. See R. v. entered the hymen it would have been

Woodburn and Coke, 16 St. Tr. 53. dangerous. Graham, B., left it to the jury

(d) As to bodily harm by infection with bodily injury ; and if so, then, though there
disease, see R. v. Clarence, 22 Q.B.D. 23, might have been an ulterior intention to
doubting R. v. Sinclair, 13 Cox, 28. commit a rape, yet, if there was an intent

(e) In R. V. Cox, R. & R. 362, the prisoner to do grievous bodily harm, the case was
cut a female child, ten years old, in her within the Act ; and that the intention
private parts, probably to enlarge them to might be inferred from the cutting. The
admit his entrance, but he was interrupted jury found the prisoner guilty, and the
and fled ; the wound was small, but bled judges held the conviction right.

a good deal ; and when a surgeon saw it, (/) R, v. Sullivan, C. & M. 209.

four days afterwards, he found it near an

CHAP. III.] Felonious Wounding, 855

harm : it is not necessary that such harm should have been actually done,
or that it should be either permanent or dangerous ; if it be such as
seriously to interfere with comfort or health, it is sufficient ' (g).

On an indictment for shooting at a person with intent to maim,
&c,, it appeared that the prosecutor was hunting small birds, when
the prisoner, a gamekeeper, came up with his gun, and ordered him off ;
the prosecutor ran away, but had not got more than forty or fifty yards
ofE when he heard the report of a gun, and at the same moment felt
several shots rattling against his back and arms, one of which lodged in
his finger : the prisoner afterwards said, ' He had warmed their tails a
goodish bit for them ' ; Parke, B. : ' There can be no doubt that this is
an assault, but I think the felonious part of the charge cannot be supported
on these facts. In order to do so, it must appear clearly that the prisoner
discharged the gun at the prosecutor with the intent laid in the indictment ;
but he seems to have waited till the prosecutor had attained such a dis=-
tance from him as not to be injured by the shot. He would rather appear
to have fired after the prosecutor with a view of frightening him than
with any serious intention of inflicting any injury on his person, This
conduct, though very reprehensible, is not sufficient to bring the case
within the Act, and he ought, therefore, to be acquitted of the
felony ' {h).

On an indictment for feloniously wounding, it appeared that the pro-
secutor and his companion came up to the prisoner, who was fighting
with his brother, and the prosecutor's companion said they were very
quarrelsome people ; whereupon the prisoner knocked him down, and
said he would do the same to the prosecutor, if he would fight ; the pro-
secutor refused, and threatened to take the law, and then the prisoner
struck the prosecutor a blow with his fist, which broke the prosecutor's
jaw on both sides of his face ; Alderson, B., told the jury that striking a
blow, even though grievous bodily harm is done, is not in itself sufficient
to shew an intent to do such grievous bodily harm ; that must be proved
by other circumstances (i).

On an indictment for wounding with intent, &c., and for unlawful
wounding, it appeared that the police ordered some gipsies to remove from
a common by the direction of the owner of a neighbouring plantation,
•but not the lord of the manor ; they refused to do so, and one of them
assaulted one of the police, who thereupon proceeded to take him into
.custody. The prosecutor took hold of two of the women, and while
holding them the prisoner struck him on the back with a scythe, the edge
of which was fenced, except two inches at the end, inflicting a wound
half an inch deep, and an inch long ; it was contended that the prisoner
could not be convicted even of wounding ; it was like the case where a
person inflicted a wound with a nail on a stick, unknown to the person
using it. Bramwell, B., said, ' The poUce had no right to interfere with the
gipsies, except by the order of the owner of the land, and their resistance,
without the use of weapons, would have been justifiable. As to the felony
charged, a man is generally supposed, by the law, to intend the natural

(g) B. V. Ashman, 1 T. & F. 88. (i) R. v. Wheeler, 1 Cox, 106.

{h) R. V. Abraham, 1 Cox, 208.

856 Of Causing Bodily Harm. [book ix.

consequence of his act ; but in this case it is not so, and to find the prisoner
guilty of the felony you must be satisfied of the existence of the actual
intent (to wound) charged in the indictment. As to the unlawful wound-
ing, if this case were like that put by the counsel for the prisoner, she
would not be guilty, as it would be a mere accident. But it is for you to
say whether, though the prisoner did not intend to wound, she did not
know that the end of the scythe was uncovered, and therefore likely to
wound. Suppose you fired a gun loaded with shot, at a person, but at
such a distance, that you did not think it would reach him, and some of
the shots did, that would be an unlawful wounding. You will say whether
the prisoner is guilty of woimding with intent, or of unlawful wounding,
or not guilty ' {/).

Upon an indictment for maliciously wounding with intent to do
grievous bodily harm, it appeared that the prisoner got into an altercation
with the prosecutor, and challenged him to fight ; that he put down the
blade of a scythe, and advanced towards the prosecutor to fight, but was
prevented ; afterwards the prosecutor challenged the prisoner to fight,
but they were again prevented, and the prosecutor and his party left,
and some time after the prisoner and two other men followed the prosecutor
and passed him. The prosecutor and his party followed, and challenged
the prisoner to fight, and used provoking language. The prisoner then
took his own road, and the prosecutor followed him, and again
challenged him to fight, which the prisoner refused, and said he would go
back and take the peace of him, and actually went back a few steps for
that purpose : but the prosecutor got before him, and was making to-
wards him, when the prisoner flourished his scythe, and told him to stand
back, or he would cut him down, and himself retreated a few steps ; the
prosecutor sprang on him, and seized him by the collar ; a scuffle ensued,
in which the prisoner struck the prosecutor across the shoulder with the
scythe, and produced a severe wound. Cresswell, J., said : ' The recent
Act (7 WiU. IV. & 1 Vict. c. 85), having omitted the proviso contained in
the 9 Geo. IV. c. 31, the judges have determined that the facts will bring
a case within this statute, if the offence would have amounted to man-
slaughter, in case death had ensued. If the act was done unlawfully and
maliciously, that is, without lawful excuse, and intentionally, it is enough.
Maliciously does not mean with premeditated maUce, as in murder ; an
intention to do the mischief unlawfully wiU satisfy the statute. Now, in
order to render a case of homicide, committed with a deadly weapon,
lawful on the ground of self-defence, it must appear that the party
retreated as far as he possibly could, and then only used the weapon to
avoid his own destruction. It is impossible to contend that the prisoner
was so driven to use the scythe in this case; the offence would have
amounted to manslaughter if death had ensued, though certainly not
an aggravated one ; and therefore you will be bound to say that the
prisoner is guilty, if you believe he really intended to do grievous bodily
harm' (k).

Upon an indictment for wounding with intent to do grievous bodily

{j) E. V. Cox, 1 F. & F. 664. See 14 & 15 reported with accuracy.
Vtot. 0. 19, o. 5. This case is evidently not (k) R. v. Odgers, 2 M. & Rob. 479.

CHAP. III.] Felonious Wounding. 857

harm, it appeared that the prosecutor and the prisoner were fellow-
servants, and the prosecutor had told the prisoner to cut some grass, which
he ought to have dpne, but did not do, whereupon the prosecutor took a
strap, and beat the prisoner with it, when the prisoner, who had lost his
right arm, took out a clasp knife, and wounded the prosecutor with it.
Piatt, B. : ' One servant has clearly no right to strike another ; and if an
under-servant conducts himself in a way in which the upper-servant
thinks he. ought not, the latter should inform his master, and let him act
as he thinks proper, either by dismissing the under-servant or otherwise.
In an ordinary case, a wrongful beating with a strap would not justify the
other party in resorting to a knife, but there is certainly in this case
the distinction that the prisoner has lost his right arm. The assault of
the prisoner by the prosecutor was clearly illegal and unjustifiable, and
if, under all the circimistances, you think that the prisoner acted in self-
defence only, you ought to acquit him ; but if you think that in defending
himself the prisoner used more violence than was necessary, you ought
to find him guilty of wounding without the intent mentioned in the
indictment ' (l).

It was held that if a wound was inflicted for the purpose of accom-
plishing a robbery, the defendant might be convicted under 9 Geo. IV.
c. 31, s. 12 (rep.), if the jury found that he intended to disable or do
grievous bodily harm (m). '

Although the intent laid is that of doing grievous bodily harm, and
upon the evidence it appears that the prisoner's main and principal intent
was to prevent his lawful apprehension, yet he may be convicted, if,
in order to effect the latter intent, he also intended to do grievous bodily
harm (n).

A sexton and others surprised two body-stealers, and attempted to
take them ; one of them cut the sexton's assistant with a sabre : and was
indicted on 43 Geo. III. c. 58, s. 1 (rep.), for cutting, with the intent to
murder, disable or do some other grievous bodily harm. The jury found
that he cut with the intent to resist and prevent their apprehension, and
for no other purpose. Upon a case reserved, the judges held, that the case
would not have been within the Act unless the apprehension would have
been lawful ; and that if the cutting was to resist or prevent a lawful
apprehension, it should have been so stated, this being one of the intents
mentioned in the Act ; and that, as the jury had negatived the intent
stated, the conviction could not be supported (o).

Upon an indictment for shooting with intent to do grievous bodily
harm, it appeared that the prisoner, being a constable, was employed to
guard a copse from which wood had been stolen, and for this purpose he
carried a loaded gun. From this copse he saw the prosecutor come out,
carrying wood which he was stealing, and called to him to stop. The
prosecutor ran away, and the prisoner, having no other means of bring-
ing him to justice, fired and wounded him in the leg. It was alleged that
the prosecutor was actually committing a felony, he having been before

(I) R. V. Huntley, 3 C. & K. 142. (n) E. v. GiUow, 1 Mood. 85. Of. R. v.

(m) R. V. Bowen, C. & M. 149. C£. R. v. Davis, 1 C. & P. 306, Garrow, B.

Cox, R. & R. 362, ante, p. 854, note (e). R. (o) R. v. Duffin, R. & R. 365, Bayley J.,

V. Shadbolt, 5 C. & P. 504. and MS.

858 Of Causing Bodily Harm. [book ix.

repeatedly convicted of stealing wood ; but these convictions were un-
known to the prisoner, and there was no reason for supposing that he
knew the difference between the rules of law relating to felony and those
relating to less offences. Brie, J„ told the jury, that ' shooting with
intent to do grievous bodily harm amounted to the felony charged, unless
from other facts there was a justification ; and that neither the belief
of the prisoner that it was his duty to fire, if he could not otherwise
apprehend the prosecutor ; nor the alleged felony, it being unknown to
him, constituted such justification/ The jury convicted ; and, upon a
case reserved, the judges were unanimously of opinion that the prisoner
was not justified in firing at the prosecutor, because the fact that the
prosecutor was committing a felony was not known to the prisoner at the
time, and therefore the conviction was right (p).

P„ the prosecutor, who was a gamekeeper, proved that he met the
prisoner sporting upon his manor, and remonstrated with him for so doing ;
and proposed that the prisoner should go with him to the steward, saying,
that if the steward would pardon him he should have no objection. The
prisoner assented to go with him, and they walked together until they
came near to the gamekeeper's horse, which was about sixty yards ofi, when
P. went on before him towards the horse ; and when he was at a short
distance from the prisoner, the prisoner fired at his back, and ran away.
On his way home P. saw the prisoner again, and the moment he looked
round at him the prisoner again fired his gun, the discharge from which
beat out one of P.'s eyes and several of his teeth. Between the first and
second firing was about a quarter of an hour. In the course of the trial
it was suggested that the prosecutor ought not to give evidence of two
distinct felonies ; but the learned judge thought it unavoidable in this
case, as it seemed to him to be one continued transaction, in the prosecu-
tion of the general malicious intent of the prisoner. Upon another ground
also the learned judge thought such evidence proper. The counsel for
the prisoner, by his cross-examination of P., had endeavoured to shew
that the gun might have gone off the first time by accident ; and, although
the learned judge was satisfied that this was not the case, he thought that
the second firing was evidence to shew, that the first, which had preceded
it only a quarter of an hour, was wilful ; and to remove the doubt, if any
existed, in the minds of the jury. The prisoner having been convicted,
the matter was submitted to the consideration of the judges, who were of
opinion that the evidence was properly received, and the prisoner rightly
convicted (q).

On an indictment charging the defendant with wounding A. with
intent to do him grievous bodily harm the defendant may be properly
convicted on evidence that he wounded A. in belief that he was some one
else (r).

(p) R. V. Dadson, 2 Den. 35. defendant meant to do grievous bodily

{q) R. V. Voke, B. & B. 531. harm to the man when he struck. He held

(r) B. v. Stopford, 11 Cox, 643. Brett, B. v. Hewlett, 1 F. & F. 91 to be inoonsis-

J., after consulting Mellor, J., told the tent with B. v. Smith, 1 Cox, 51, and R. n

jury that the question was whether the Hunt, 1 Mood, 93.

CHAP, III.] Unlawful Wounding, dec. 859

Sect. IV.^Of Unlawful Wounding.

By 24 & 25 Vict. c. 100, s. 20 (s)/ Whosoever shaU unlawfully and
maliciously wound or inflict any grievous bodily harm upon any other
person, either with or without any weapon or instrument, shall be guilty of
a misdemeanor, and being convicted thereof shall be liable to be kept in
penal servitude . . .' (if).

In E,, V. Martin (m), the defendant, with the intention of causing terror
in the minds of persons leaving a theatre, put out the- gaslights on the
staircase, and also, with the intention of obstructing the exit, placed an
iron bar across the doorway. Several of them were injured. It was held
that he had been rightly convicted on an indictment under this section
of unlawfully and maliciously inflicting grievous bodily harm upon two
of the audience named in the indictment.

If in consequence of a reasonable and well-grounded fear of violence,
a person jumps from a window, or into a river, to escape the threatened
violence, and sustains grievous bodily harm ; or if the person sustains
grievous bodily harm in escaping from the threatened violence, this
will amount to inflicting grievous bodily harm under the section.

A prisoner was charged under the section. He was drunk, and threat-
ened his wife. He asked if she was in bed, she said she was not. He then
said, ' I'll make you so that you can't go to bed.' The prisoner's wife
was frightened and opened the window and got one leg out, to get out.
Her daughter caught hold of her and held her. The prisoner had got
within reach of his wife, and was calling out to let her go ; whereupon the
daughter left hold, and the prisoner's wife fell into the street and broke
her leg. It was held (following E. v- Martin {v) ) a correct direction to the
jury, that if the prosecutrix's apprehension was well grounded, taking info
account the circumstances in which she was placed, and if getting out
of the window was an act such as under the circumstances a woman
might reasonably be led to take, they should find the prisoner guilty (w).

Sect. V. — Of Setting Engines calculated to destkoy Human
Life or inflict Grievous Bodily Harm.

By 24 & 25 Vict. c. 100, s. 31, ' Whosoever shall set or place, or cause
to be set or placed, any spring gun, man trap, or other engine calculated
to destroy human life or inflict grievous bodily harm, with the intent that
the same or whereby the same may destroy or inflict grievous bodily
harm upon a trespasser or other person coming in contact therewith,
shall be guilty of a misdemeanor, and being convicted thereof shall be

(a) Taken from 14 & 15 Vict. o. 19, s. 4 ; R. v. Peters, 1 Or. App. R. 141, and ante,

and see 10 Geo. IV. c. 34, ». 29 (I). The pp. 211, 212.
word ' wound ' has been so placed in this (u) 8 Q.B.D. 54.

clause that the words 'either with or without (v) Ubi supra.

any weapon or instrument,' may apply to it. (to) R. v. Halhday, 38 W. R. 256. See

(t) The words omitted were repealed in also R. v. Hickman, 5 C. & P. 151. R. v.

1892 as superseded by 54 & 55 Vict. c. 69, Pills, 5 C. & P. 284. R. v. Curley, 2 Cr. App.

s. 1, under which the term of penal servi- R. 109. R. v. Grimes, 15 N. S. Wales Rep.

tude is from three to five years, and the (Law), 209 ; ante, p. 666, note (a). These

term of imprisonment not more than two cases appear to over-rule R. v. Donovan,

years with or without hard labour. Vide 4 Cox, 399, ante, p. 666, note (a).

860 Of Causing Bodily Harm. [book ix.

liable ... to be kept in penal servitude . . . (a;) ; and whosoever shall
knowingly and wilfully permit any such spring gun, man trap, or other
engine which may havebeen set or placed in anyplace then being in or after-
wards coming into his possession or occupation by some other person, to
continue so set or placed, shall be deemed to have set and placed such gun,
trap, or engine with such intent as aforesaid : Provided that nothing in
this section contained shall extend to make it illegal to set or place any
gin or trap such as may have been or may be usually set or placed with
the intent of destroying vermin : Provided also, that nothing in this
section shall be deemed to make it unlawful to set or place, or cause to
be set or placed, or to be continued set or placed, from sunset to sunrise,
any spring gun, man trap, or other engine which shall be set or placed,
or caused or continued to be set or placed, in a dwelling house, for the
protection thereof («/).

It has been ruled that an alarm gun loaded with a shotted cartridge
may be an engine calculated to destroy life within the section (z).

Causing death by engines set in contravention of this enactment is
manslaughter (a).

Setting dog-spears in a wood is not an illegal act at common law,
and it was not rendered so by 7 & 8 Geo. IV. c. 18 (6).

Sect VI. — Of Causing Bodily Haem by Furious Driving or
OTHER Wilful Misconduct or Wilful Neglect.

By the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100) (c),
sect. 35, ' Whosoever, having the charge of any carriage or vehicle, shall, by
wanton or furious driving or racing, or other wilful misconduct, or by
wilful neglect, do or cause to be done any bodily harm (c) to any person
whatsoever, shall be guilty of a misdemeanor, and being convicted
thereof shall be liable, at the discretion of the Court, to be imprisoned
for any term not exceeding two years, with or without hard labour' («Z).

The section extends to bicycles (e), and to all carriages whether
drawn by animals or propelled by steam, petrol, electricity, or other
mechanical means. Where death is caused by contravention of the
enactment the slayer is liable to conviction of manslaughter (/).

{x) The punishment is now penal servi- driving or racing, or wilful misoonduot of

tude from three to five years or imprisonment coachmen and others having the charge of

with or without hard labour for not over such coaches or carriages. The present

two years. 54 & 55 Vict. c. 69, s. 1, ante, section includes all carriages and vehicles,

pp. 211, 212. The words omitted are and extends also to wilful neglect. As to

repealed. the meaning of the term ' wilful,' see post,

(y) Framed from 7 & 8 Geo. IV. c. 18, p. 876. As to furious riding or driving in

with some slight verbal alterations. the metropolis, see the Metropolitan Police

(z) B. V. Smith [1902], noted 37 L. J. Act, 1839 (2 & 3 Vict. c. 47), s. 54 (5) and by

(Newsp.) 89, Bruce, J. See Archb. Cr. PI. licensed drivers, the London Hackney Car-

(23rd ed.), 853. riages Act, 1843 (6 & 7 Vict. c. 86), s. 28 ;

(a) B.'W.Heaton, 60J.P. 508,Kennedy, J. and in towns generally, the Town Police

(b) Jordin v. Crump, 8 M. & W. 782. Clauses Act, 1847 (10 & 11 Vict. u. 89), a. 28.
See Wootton v. Dawkins, C. B. (N. S.) 412. As to furious driving of motor cars, see

(d) Taken from 1 Geo. IV. c. 4, which (e) R. v. Parker, 59 J. P. 793, Hawkins, J.
was confined to stage-coaches and public See Archb. Cr. PI. (23rd ed.), 855.
carriages, and to the wanton and furious (/) Vide ante, p. 794.

CHAP, in.] Procedure. 861

Sect. VII. — Procedure, &c.

Where it is uncertain whetlier tlie defendant intended by his act to
murder or to cause grievous bodily harm, &c., it is usual to insert counts
varying the intent (g). A person who is present aiding and abetting
when the criminal act is done is indictable as a principal, though his was
not the hand by which the mischief was attempted or effected {h). But, if
several are out for the purpose of committing a felony, and upon an alarm
run different ways, and one of them maims a pursuer to avoid being taken,
the others are not to be considered principals in such act (i).

Power to Convict of Unlawful Wounding on Indictment for Felonious
Wounding.— By 14 & 15 Vict. c. 19, s. 5, 'If upon the trial of any
indictment for any felony, except murder or manslaughter, where the
indictment shall allege that the defendant did cut, stab, or wound any
person, the jury shall be satisfied that the defendant is guilty of the
cutting, stabbing, or wounding, but are not satisfied that the defendant
is guilty of the felony charged in such indictment, then and in every
such case, the jury may acquit the defendant of such felony, and find
him guilty of unlawfully cutting, stabbing, or wounding (/), and there-
upon the defendant shall be liable to be punished in the same manner as
if he had been convicted upon an indictment for the misdemeanor of
cutting, stabbing, or wounding.'

This section appears to apply when the indictment alleges a felonious
wounding, and does not apply to a felonious shooting with intent,
&c. (Jc).

In E. V. Ward (l) the prisoner was indicted under 24 & 25 Vict,
c. 100, s. 18, for unlawfully, maliciously and feloniously wounding with
intent to do grievous bodily harm. The prosecutor was using a punt
in a creek of a river for the purpose of shooting wild fowl, lying with
his face downwards in the punt, and paddling with his arms over the
sides. When slewing the punt round to return home he suddenly heard
the report of a gun and found himself shot and wounded seriously.
The prisoner had fired the shot in the direction of the punt with the
intention of frightening the prosecutor from again coming into the
creek for the purpose of fowling, and not with the intention of doing
him grevious bodily harm. The prisoner at the time and afterwards
asserted that if the prosecutor had not slewed the punt round at the
moment of his shooting, the shot would not have struck him. The
jury found the prisoner guilty of unlawful wounding. It was held that
14 & 15 Vict. c. 19, s. 5, must be construed as if the word ' malicious '
were applied to wounding; and there was evidence of a malicious
wounding by the prisoner and that the conviction was right.

As to conviction of the attempt on an indictment for the complete
offence, see 14 & 15 Vict. c. 100, s. 9, post, Vol. ii. p. 1966.

(?) Vide ante, p. 853. . (?) Under 24 & 25 Vict. .;. 100, 3. 20,

(A) R. V. Towle, B. & R. 314 ; and vide ante, p. 859.

ante, p. 114. (*) R- «'• Miller, 14 Cox, 356, Bowen, J.,

(i) B. V. White, B. & R. 99, and MSS. but see R. o. Waudby, post, p. 862.

Bayley, J. Vide ante, pp. 123, 124. (I) L. R. 1 C. C. R. 356.

862 Of Causing Bodily Harm. [BOOKIx.

On an indictment under sect. 20 {ante, p. 859), the defendant may
be convicted of a common assault (m).

In R. V. Sparrow (n), where some counts charged the defendant with
an assault on S. G., and with having thereby unlawfully and maliciously
inflicted grievous bodily harm upon him, and another count was for a
common assault, it appeared that the defendant struck the prosecutor
with his fists two violent blows on the mouth, another on the temple, and
a fourth on the back of the ear ; three of his front teeth, and other teeth
farther up were loosened ; hia gums were lacerated, and the mouth was
swollen. The pain which was suffered immediately afterwards was
insufferable ; one of the front teeth and the back teeth had since partially
fastened, but the two front teeth had not, and the prosecutor must lose
them. The prosecutor had suffered much otherwise for a long time. The
jury were told that the injuries inflicted fell within the definition of
' grievous bodily harm,' and that if they believed the witnesses, there
was evidence to support the first counts ; and that the question of whether
the defendant intended to inflict grievous bodily harm did not arise, but
that the simple point for their consideration was, ' did the defendant
unlawfully assault the prosecutor, and thereby inflict upon him grievous
bodily harm 1 ' The verdict was, ' We find the defendant guilty of an
aggravated assault, but without premeditation ; it was done under the
influence of passion.' It was then contended that this was a verdict of
guilty upon the count for the common assault only ; but a verdict of
guilty was directed to be entered on the other counts, and, upon a case
reserved, ii; was urged that the jury might have intended not to find the
prisoner guilty of intending bodily harm, and that intention was a
necessary ingredient in the offence, and the word ' maliciously ' meant
something more than ' intentionally ' ; but it was held that the direction
was correct ; that the language used by the jury must be construed by
looking at the subject matter of the charge, and what was left to the jury ;
and that the assault was intentional in the eye of the law, though
committed without premeditation and under the influence of passion.

Upon an indictment against three for maliciously wounding with
intent to do grievous bodily harm, the jury may convict two of the
felony charged, and the third of unlawfully wounding (o).

In E. V. Waudby (p), one prisoner was charged on the first count
with feloniously shooting at F. with intent to do him grievous bodily
harm and another prisoner was charged with feloniously aiding and abett-
ing him to commit the felony, and on a second count with feloniously
wounding F. with like intent. The jury found the one guilty of unlaw-
ful wounding, and the other guilty of aiding and abetting. On a case
reserved, the question was raised whether the second prisoner could,
on such an indictment, be convicted of aiding and abetting in the
misdemeanor. The conviction of both was upheld {q).

(m) R. V. Yeadon, L. & C. 81. R. v. (q) The decision appears to be perfectly

Oliver, Bell, 728. Cf. R. v. Roxburgh, 12 correct if the conviction on the second

Cox, 8, as to plea of guilty to common count be kept in view. If it rested on the

assault. first count it would be inconsistent with

in) [1860] Bell, 298. R w. Miller (amte, p. 861 ), and with the words

(o) R. V. Cunningham, Bell, 72. of 14 & 15 Vict. c. 19, s. 5, ante, p. 861.

(p) [1895] 2 Q.B. 482.

( 862a )

CANADIAN NOTES.

Sec. 1. — Of Conspiring and Incitement to Murder.

Conspiring and Counselling to Murder.— ^CoAe sec. 266.

Sec. 2. — Attempts to Commit Murder. — Code sec. 264.

An indictment that "A. B. attempted to kill and murder C. D."
sufficiently discloses an indictable offence, and the Court has the
power to allow it to be amended so as to read that "A. B. with intent
to commit murder, shot at C. D." The King v. Mooney, 11 Can. Cr.
Cas. 333.

An indictment multifarious in that it combines a charge of a
failure to provide necessaries for a child under sixteen under sees.
242 and 244 with a charge of an attempt to murder the child, to
which indictment the prisoners pleaded, is sufficient upon which to
base a conviction thereon for the latter offence without a formal
amendment of the indictment, where the presiding Judge has with-
drawn from the jury that portion of the charge based upon sees.
242 and 244. R. v. Lapierre (1897), 1 Can. Cr. Cas. 413 (Que.).

The prosecution must prove the intent as well as the assault. Re
Kelly (1902), 5 Can. Cr. Cas. 541.

Upon a charge of causing grievous bodily harm to a child under
defendant's care with intent to bring about the child's death, evi-
dence of acts of cruelty by defendants to another child also in defen-
dant 's care are irrelevant to the case and inadmissible. R. v. Lapierre
(1897), 1 Can. Cr. Gas. 413 (Que.)'.

On the trial of a person accused of attempt to murder by shooting,
evidence that he had burglar's tools in his possession at the time is
admissible, as tending to prove criminal intent. It is proper for the
Judge, in charging the jury in a trial for an attempt to murder, to
instruct them that they may draw an inference as to the prisoner's
intent to kill from the circumstances of his being a stranger loitering
in a street or park, between four asad five o'clock in the morning, with
a loaded revolver and burglar's tools in his possession. The King v.
Mooney, 11 Can. Cr. Cas. 333.

Sec. 3. Of Unlawful Acts Causing or Calculated to Cause Bodily

Harm.

Felonous Wounding. — Code sec. 273.

The intent may be inferred from the act committed. R. v. LeDantC;,
2 Geldert & Oxley (N.S.) 401.

862& Conspiring to Murder. [book ix.

Upon an indictment charging a shooting at a person with intent,
a verdict for common assault may be rendered. Re Cronan (1874),
24 U.C.C.P. 106.

Upon the trial of an indictment for wounding with intent to dis-
able, a verdict of "guilty without malicious intent" is equivalent
to a verdict of acquittal, although the jury were instructed that if
intent to disable were negatived they might still convict of the simple
offence of wounding. Such verdict is to be construed as a finding that
the act of the accused which resulted in wounding the complainant
was done without malice. (The King v. Slaughen white (No. 1)^ 9
Can. Cr. Cas. 53, 37 N.S.R. 382, reversed.) Slaughenwhite v. The
King; The King v. Slaughenwhite (No. 2), 9 Gan. Cr. Cas. 173, 35
Can. S.C.R. 607.

Upon a charge of shooting with intent to do grievous bodily harm
in which the plea is self-defence, it is a question for the jury, whether
the assault upon the accused, which had provoked the shooting, had
ended or was still being pursued. It is mis-direction to charge the
jury that, to support the plea of self-defence to the infliction of
grievous bodily harm, they must find that the accused could not other-
wise have preserved himself from death or grievous bodily harm, it
being a sufficient justification if the accused had a reasonable appre-
hension of grievous bodily harm to himself from the violence of the
assault upon him, and if he believed on reasonable grounds that he
could not preserve himself from grievous bodity harm otherwise than
by inflicting grievous bodily harm upon his assailant. The King v.
Ritter, 8 Can. Cr. Cas. 31, Cr. Code sees. 53 and 54.

Bodily Injury by Unlawful Act or Omission. — Code sec. 284.

This sec. (284) is not in any English Act. The Imperial Com-
missioners on the Draft Code of 1879 recommended it, but there was
3, minority report against it, and it was not enacted.

Although a corporation cannot be guilty of manslaughter, it may
be indicted under sec. 222 and possibly also under this section for
having caused grievous bodily injury by omitting to maintain in a safe
•condition a bridge or structure which it was its duty to so maintain,
-and this notwithstanding that death ensued at once to the person
sustaining the grievous bodily injury. A fine is the punishment
which must be substituted under Cr. Code sec. 920 in the case of a
■corporation, in lieu o'f the imprisonment mentioned in Cr. Cede see.
.284, and the amount is in the discretion of the Court (Cr. Code sec. '
1029). The expression "grievous bodily injury" includes injuries
immediately resulting in death, and as a corporation is not amenable
io a charge of manslaughter, the death is as to it a circumstance in
aggravation of the crime, and does not enlarge the nature of the
ofEenee. R. v. Union Colliery Co. (1900), 3 Can. Cr. Cas. 523 (B.C.) ;

CHAP. III. J Causing Bodily Harm. 862c

afSrmed by the Supreme Court of Canada suh nom., Union Colliery
V. The Queen (1900), 4 Can. Cr. Cas. 400, 31 Can. S.C.R. 81.

Sec. 4. — Unlawful Wounding. — Code sec. 274.

A conviction for inflicting grievous bodily harm under sec. 274
which provides a punishment for the person "who unlawfully wounds
or inflicts any grievous bodily harm upon any other person" need not
state that the act was done "unlawfully," that term in the section
being referable only to the offence of wounding. R. v. Treadwell
(1902), 5 Can. Cr. Cas. 461.

Sec. 5. — Of Setting Engines Calculated to Destroy Human Life or
Inflict Grievous Bodily Harm. — Code sec. 281.

The words "actual bodily harm" in sec. 295 would be fully
covered by the least bodily harm, whilst the offence provided in sec.
274 has added to it an aggravating element which makes the bodily
harm grievous. R. v. Hostetter (1902), 7 Can. Cr. Cas. 221.

Justices of the peace have no power on a preliminary investigation
before them of a charge of unlawfully woimding, to reduce the charge
to one of common assault, over which they would have summary
jurisdiction. R. v. Lee (1897), 2 Can. Cr. Cas. 233; Miller v. Lea
(1898) , 2 Can. Cr. Cas. 282. A conviction recorded by justices in such
a case upon a plea of guilty to the charge as reduced, is not a bar
to an indictment for unlawfully wounding, based upon the same state
of facts and does not support a plea of autrefois convict. Hid.

Sec. 6. — Causing Bodily Harm hy Furious Driving or Other Wilful
Misconduct or Wilful Neglect.

Punishment for. — Code sec. 285.

As to the meaning of the term "wilful neglect," e.g., wilfully
refusing or neglecting to maintain a wife, see Anonymous Case
(1902), 6 Can. Cr. Cas. 163 (Que.). A "wilful" refusal to allow a
person to vote means a refusal which is perverse or malicious. John-
son V. Allen, 26 O.R. 550.

( 863 )

CHAPTER THE FOURTH.

OP ATTfiMPTiNG TO CHOKB OR TO INJURE BY POISON OR EXPLOSIVES,

Sect. I. — Of attempting to Choke, &c., and using Drugs

IN ORDER to commit OpFENCES.

Attempts to sufEocate or strangle with intent to commit murder are
punishable under 24 & 25 Vict. c. 100, s. 14, ante, p. 841.

By 24 & 25 Vict. c. 100, s, 21 (a), ' Whosoever shall, by any means
whatsoever, attempt to choke, sufEocate, or strangle any other person,
or shall, by any means calculated to choke, suffocate, or strangle, attempt
to render any other person insensible, unconscious, or incapable of
resistance, with intent in any of such cases thereby to enable himself or
any other person to commit, or with intent in any of such cases thereby to
assist any other person in committing any indictable offence, shall be
guilty of felony, and being convicted thereof shall be liable ... to be
kept in penal servitude for life . . . (b).

A male person convicted under the above section may, in addition to
the punishment awarded by the section (as amended in 1891) or any
part thereof be sentenced to be whipped under the Garrotters Act, 1863
(26 & 27 Vict. c. 44), which is set out ante, p. 216.

By 24 & 25 Vict. c. 100, s. 22 (c), ' Whosoever shall unlawfully apply
or administer to or cause to be taken by, or attempt to apply or administer
to or attempt to cause to be administered to or taken by any person, any
chloroform, laudanum, or other stupefying or overpowering drug, matter,
or thing, with intent in any of such cases thereby to enable himself
or any other person to commit or with intent in any of such cases
thereby to assist any other person in committing, any indictable offence,
shall be guilty of felony, and being convicted thereof shall be liable . . .
to be kept in penal servitude for life . . .' (b).

By 48 & 49 Vict. c. 69, s. 3, sub-s. 3 {post, p. 956) it is an indictable
misdemeanor to apply, administer to, or cause to be taken by any
woman or girl, any drug, matter, or thing, with intent to stupefy
or overpower so as to enable any person to have a lawful carnal
connection with such woman or girl (d).

(a) This section was new law in 1861. (c) Taken from 14 & 15 Vict. c. 19, s. 3.

(b) Or not less than three years or to im- The words in italics in the beginning of this
prisonment with or without hard labour for section were introduced for the same reason
not more than two years ; 54 & 55 Vict. as those in s. 14. See the note to that
0. 69, s. 1, ante, pp. 211, 212. The words section, ante, p. 841.

omitted in s. 21, 22 were repealed in (d) Corroboration is necessary, m. 3,

1892, S. L. R. ; s. 21 was new law in proviso.

1861.

864 Of the Use of Poison. [^°°^

IX.

Sect. II.— Of the Use oe Poison to commit Crime.

Persons who administer or attempt to administer or ''^f^® °J^^^*^™J*
to cause to be administered to or taken by any P^^^^"' ^^5 P!^!?°W^
other destructive things with intent to cx>mmit murder are pumsMble
under 24 & 25 Vict. c. 100, sects. 11, 14, ante, pp. V,^^, o*J- . . . ^

By sect. 23 (e), ' Whosoever shaU unlawfully and mahcously admmister
to or cause to be administered to or taken by any other person any
poison or other destructive or noxious thmg so as thereby to endanger
the life of such person, or so as thereby to mflict upon such person any
.^rievous bodily harm, shall be guilty of felony, and bemg convicted thereof
shall be liable ... to be kept in penal servitude for any term not
exceeding ten years . . . ' (/).

By sect. 24 {g), ' Whosoever shall unlawfully and maliciously ad-
minister to or cause to be administered to or taken by any other person
any poison or other destructive or noxious thing, with intent to injure,
aggrieve, or annoy such person, shall be guilty of a misdemeanor, and
being convicted thereof shall be liable ... to be kept in penal
servitude . . .' {h).

By sect. 25, ' If upon the trial of any person for any felony in the
last but one preceding section mentioned, the jury shall not be satisfied
that such person is guilty thereof, but shall be satisfied that he is guilty
of any misdemeanor in the last preceding section mentioned, then and
in every such case the jury may acquit the accused of such felony, and
find him guilty of such misdemeanor, and thereupon he shall be liable to
be punished in the same manner as if convicted upon an indictment for
such misdemeanor ' (i).

Poison or Other Destructive Thing; — Upon an indictment for adminis-
tering poison with intent to murder, it appeared that the prisoner had
administered to a child nine weeks old two cocculus indicus berries. The
child vomited one of them up, and the other passed through her body in
the course of nature. Two medical men proved that the cocculus indicus
berry is classed with narcotic poisons : the poison consists in the presence

(e) Taken from 23 & 24 Viot. c. 8, s. 1. on the question whether the intent above

(/) For other punishments, see 54 & 55 stated was an intent to injure, aggrieve or

Viot. c. 69, s. 1, ante, pp. 211, 212. The aimoy within the statute, the conviction

words omitted were repealed in 1892 was affirmed. R. v. Wilkins, L. & C. 89.

(S. L. R.). But where oautharides was administered in

(g) Taken from 23 & 24 Vict. c. 8, s. 2. such a small quantity as to be incapable of

Upon an indictment on that section for doing any mischief, although administered

administering canthandes to a female, with with the intent to cause inconvenience and

intent to injure, aggrieve, and annoy her, annoyance, Cockbum, C.J., after consulting

it appeared that the prisoner, unknown to Hawkins, J., held that this was no ' ad-

the prosecutrix, put canthandes into a cup ministering of a noxioua thing ' within the

of tea which she drank, and was very ill in section. R. v. Hennah 13 Cox 547 For

consequence. This drug taken in large decisions on the earlier law see R v Walk

quantities is poisonous, but it is adminis- den, 1 Cox, 282. R. v Hanson 2 C & K

tered by medical men as a stimulant to the 912. R. v. Vaughan 8 Cox 256

Mdueys and bladder. The jury found that (h) For other punishments see 54 & 55

the prisoner admimstered the canthandes Vict. u. 69, s. 1, ante, pp 211 212 T>i

with intent to excite the sexual passion and words omitted were reiipnlorl • lono

desire of the prosecutrix, in order that he (S. L. R.). l"eaiea ui 1892

might obtain connection with her, and on (i) This section re-enacts 23 & 24 V f

a case reserved, after a verdict of guilty, o. 8, s. 3. •

CHAP, iv.i Of the Use of Explosives, Corrosives, &c. 865

of an alkaloid, which is extracted from the kernel ; all the noxious pro-
perties are in the kernel ; it has a very hard exterior or pod, to break
which much force is required. One of these witnesses added that the
berry, if the pod is broken, is calculated to produce death in an adult
human subject, though he did not know how many would be required for
the purpose ; he thought the poison contained in the kernels of two
berries, if the pods were burst, and if retained on the stomach, might
produce death in a child of nine weeks old, but that the berry could not
be digested by the child, and that it would pass through its body without
the pod being burst, and so would be innocuous. It was objected that
the berries were not poison within the meaning of the statute ; for that
though the kernel of the berries contained poison, yet the pod rendered
the poison innocuous. The objection was overruled, and upon a case
reserved, the judges were unanimously of opinion that the conviction
was right. Wilde, C.J., said : ' It is admitted that the kernel is poison
though not the pod ; part of the berry is therefore admitted to be poison,
though not the whole. The whole berry was administered, and with
intent to kill. The act, therefore, of administering poison with intent to
kill is proved. The effect of that act is beside the question : the act was
an administering poison, which failed to produce the intended effect.
We all think the conviction right ' (j).

If a person mix poison with coffee, and tells another that the coffee is
for her, and she take it in consequence, it seems that this is an adminis-
tering, and at all events, it is a causing the poison to be taken {k).

On an indictment for attempting to administer poison it appeared that
the prisoner had bought some salts of sorrel, and put it in a sugar-basin
in order that the prosecutor might take it with his tea, and the prosecutor
and his wife took some of it with their tea, and discovered that something
was wrong, and this led to a discovery of the poison ; Wightman, J.,
held, that if the prisoner put the poison in the sugar intending that it
should be taken, that was an attempt to administer it (Z).

If A. delivered poison to B. for the purpose of his administering it to
C. in A.'s absence, A. was not liable to be convicted under 1 Vict. c. 85,
s. 3, of an attempt to admmister poison to C, if B. were a guilty agent (m).

Sect. III. — Or the use op Explosives, Corrosives, &c.,
FOR Criminal Purposes.

The statutory provisions for preventing and punishing the use of
explosives (other than fire arms) to commit crimes against person and

(j) R. V. Guderay, 1 Den. 514. In the because a child ia supposed to be incapable

course of the argument, Alderson, B., said : of doing so ? '

' Suppose arsenic given in a globule of glass, (h) E. v. Harley, 4 0. & P. 369. In this

would that be an administering of a de- case the prisoner was indicted under 9

structive poison ? ' Williams, J. : ' Sup- Geo. IV. c. 31, a. 11. See the cases, ante,

pose a child to have a feeble digestion by p. 830, as to administering drugs to procure

reason of tender age, and the medical man abortion.

to say that it could not digest the pod for (I) R. v. Dale, 6 Cox, 14, vide ante, p. 834.
that reason, could the amount of the diges- [m) R. v. Wilhams, 1 Den. 39 ; 1 C. &
tive power in the particular case affect the K. 589. The' prisoners were afterwards
question?' Alderson, B. : 'Suppose a convicted on an indictment for the mis-
grown man could digest it, would it be demeanor of doing the acts with a criminal
poison ? if so, would it cease to be poison intent. See Dears. 547.

VOL. I. ^ ^

866 Of the Use of Explosives, Corrosives, &c. [book ix.

property are, for reasons of practical convenience, dealt with together
in this chapter.

By the Malicious Damage Act, 1861 (24 & 25 Vict. c. 97), s. 9 (w),
' Whosoever shall unlawfully and maliciously, by the explosion of
gunpowder or other explosive substance, destroy, throw down, or damage
the whole or any part of any dwelling-house, any person being therein,
or of any building, whereby the life of any person shall be endangered,
shall be guilty of felony, and being convicted thereof shall be liable at the
discretion o£ the Court to be kept in penal servitude for life, ... or
to be imprisoned, . . . and, if a male under the age of sixteen years,
with or without whipping ' (o).

On an indictment under this section it was held by Lopes, J., after
consulting Lord Coleridge, C.J., that the endangering of life must result
from the damage done to the building mentioned in the indictment, but
that it was not necessary that the persons whose lives were endangered
should have been inside the building. For the purpose of proving such
endangering of life evidence of damage to other buildings that might be
inhabited was inadmissible, though such evidence was admissible to shew
the nature and extent of the explosion and its tendency to destroy the
particular building. To endanger within this section includes not only
actual injury received but also exposure to, or chance of, injury (f).

By sect. 10 {q), ' Whosoever shall unlawfully and maliciously place or
throw in, into, upon, under, against, or near any building any gunpowder
or other explosive substance, with intent to destroy or damage any
building or any engine, machinery, working tools, fixtures, goods, or
chattels, shall, whether or not any explosion take place, and whether or
not any damage be caused, be guilty of felony, and being convicted
thereof shall be liable at the discretion of the Court, to be kept in penal
servitude for any term not exceeding fourteen . . . years, or to be

(n) This section embodies 9 & 10 Vict. u. were put out of Gate's house. They then

25, ss. 1, 2. Under s. 2 of that Act, where began to fire the gun ; at first in front of the

life was endangered, the offence was capital. house ; then they fired under the door,

See 24 & 25 Vict. c. 100, s. 12 (anU, p. 840). filHng the house with smoke. They fired

(o) For other punishments see 54 & 55 off the gun next through the keyhole of the

Vict. c. 69, s. 1, ante, pp. 211, 212. The door, and, being out of percussion-caps,

words omitted are repealed. applied a candle to the nipple for the pur-

(p) R. V. McGrath, 14 Cox, 598. pose. The effect of this shot was to drive

(q) Taken from 9 & 10 Vict. c. 25, s. 6. the key with great violence into the house,
In R. V. Brown, 3 F. & F. 821, the prisoners cutting the arm of Mrs. Gate, and knocking
were indicted under this section for damag- Gate insensible oft his chair, by striking
ing the house of J. Gate by the explosion of him on the head. It also blew the lock of
gunpowder, J. Gate and his wife being the door to pieces, and spUt the door. The
therein. In Cumberland there is a custom prisoners were afterwards very abusive and
in country places, when a wedding has violent on the inmates rushing out to cap-
taken place, for the neighbours to assemble ture them and their gun. Martin, B., was
with guns, and fire a kind of feu de joie in of opinion that the statute was not ineant
honour of the event, the bridegroom or his to apply to such a case as this, but rather
friends treating them. In pursuance of to malicious injuries to houses, by placing
this custom the prisoners and others went or throwing explosive substances against or
with a gun thus to celebrate the marriage of into them, with intent to destroy the house
Gate's daughter with one Noble. On arriv- or injure the inmates. This was more in
ing at Gate's house they asked for drink, the nature of wanton mischief or assault,
and said they had come to shoot. Noble and he directed an acquittal. ' If this case
treated them to beer, and gave the one who is correctly reported, it deserves reconsidera-
had the gun 2s. 6d. not to fire. Having got tion.' C. S. G.
the beer, they wanted something to eat, but

CHAP. IV.] Of the Use of Explosives, Corrosives, &c. 867

imprisoned, . . . and, if a male under the age of sixteen years, with or
without whipping (r).

By sect. 45 {rr), ' Whosoever shall unlawfully and maliciously place or
throw in, into, upon, against, or near any ship or vessel any gunpowder
or other explosive substance, with intent to destroy or damage any ship
or vessel, or any machinery, working tools, goods, or chattels, shall,
whether or not any explosion take place, and whether or not any injury
be effected, be guilty of felony, and being convicted thereof shall be
liable, at the discretion of the Court, to be kept in penal servitude for any
term not exceeding fourteen years, ... or to be imprisoned, . . . and,
if a male under the age of sixteen years, with or without whipping (r).

Shooting into a hoase has been held not to be within sect. 9 (s).

The prisoners were indicted under sect. 10 for throwing gunpowder
against a house with intent to damage. It appeared that they had
thrown a bottle containing gunpowder against a window of a house, and
that in the neck of the bottle there was a fuse, and Kelly, C.B,, held that
unless the fuse in the bottle was lighted at the time the bottle was thrown
against the house the ofEence was not made out, but said : ' I do not say that
it is necessary that the Ught should pass from the fuse to the powder in ihe
bottle and that an explosion should take place. It is enough to consti-
tute the offence if once the light was applied to the fuse before the bottle
was thrown, although it might go out before the bottle struck the house
and no explosion actually resulted from it. . . . If anybody merely threw
a bottle containing gunpowder that would not comply with the con-
ditions of the statute. If the fuse was not lighted, it could not cause
an explosion, and it would be merely throwing a bottle against a house ' {t).

By the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100),
s. 28 (m),' Whosoever shall unlawfully and maliciously, by the explosion
of gunpowder or other explosive substance, burn, maim, disfigure, disable,
or do any grievous bodily harm to any person, shall be guilty of felony,
and being convicted thereof shall be liable at the discretion of the Court
to be kept in penal servitude for life . . . or to be imprisoned . . . and if
a male under the age of sixteen years, with or without whipping (r).

By sect. 29 iv), ' Whosoever shall unlawfully and maliciously cause
any gunpowder or other explosive substance to explode, or send or deliver
to or cause to be taken or received by any person any explosive substance
or any other dangerous or noxious thing, or put or lay at any place, or cast
or throw at or upon or otherwise apply to any person, any corrosive fluid
or any destructive (vv) or explosive substance, with intent in any of the
cases aforesaid to burn, maim., disfigure, or disable any person, or to do
some grievous bodily harm to any person, shall, whether any bodily harm

(r) For other punishments see 54 & 55 placed an infernal machine in any place

Vict. u. 69, s. 1, ante, pp. 211, 212. The where he believed another would tread on

words omitted are repealed. it and thereby cause it to explode, he would

(rr) Taken from 9 & 10 Vict. c. 25, a. 6. not have been guilty of an offence. The

(«) R. V. Brown, 3 F. & F. 821. words ' put or lay at any place ' were intro-

[t) R. V. Sheppard, 11 Cox, 302. duoed to meet all such cases. As to the

(tt) Taken from 9 cfe 10 Vict. o. 25, s. 3. words ' whether any bodily injury,' &c.,

{v) Taken from 9 & 10 Vict. c. 25, s. 4, see the note to s. 14, ante, p. 841.

and 7 Will. IV. and 1 Vict. c. 85, s. 5. (iw) Including, it would seem, boUing

Under those sections, if any person had water. R. v. Crawford, 1 Den. 100.

3k2

868 Of the Use of Explosives, Corrosives, &c. [book ix

be effected or not, be guilty of felony, and being convicted thereof shall be
liable/ at the discretion of the Court to be kept in penal servitude for life
... or to be imprisoned . . . and if a male under the age of sixteen
years, with or without whipping ' {w).

This section is by the Gunbarrel Proof Act, 1868 (31 & 32 Vict. c. cxiii.),
s. 123, extended to persons knowingly sending for proof a gun barrel
containing any explosive substance.

Where the prisoner threw an electric fuse detonator out of a railway
carriage window, and it was picked iip by the prosecutor, and exploded
and injured him, it was held that it was a question for the jury as to the
intent with which the prisoner had acted {x).

By sect. 30 {y), ' Whosoever shall unlawfully and maliciously place or
throw in, into, upon, against, or near any building, ship, or vessel, any
gunpowder or other explosive substance, with intent to do any bodily
injury to any person, shall, whether or not any explosion take place,
and whether or not any bodily injury be effected, be guilty of felony,
and being convicted thereof, shall be liable at the discretion of the Court
tobekeptinpenalservitudefor anytermnotexceedingfourteenyears . . .
or to be imprisoned . . . and if a male under the age of sixteen years,
with or without whipping ' (to).

By sect. 64 (z), ' Whosoever shall knowingly have in his possession,
or make or manufacture any gunpowder, explosive substance, or any
dangerous or noxious thing, or any machine, engine, instrument, or thing,
with intent by means thereof to commit, or for the purpose of enabling
any other person to commit, any of the felonies in this Act mentioned,
shall be guilty of a misdemeanor, and being convicted thereof shall be
liable, at the discretion of the Court, to be imprisoned for any term not
exceeding two years, with or without hard labour, . . . and, if a male
under the age of sixteen years, with or without whipping . . . ' (a).

By sect. 65, 'Any justice of the peace of any county or place in which
any such gunpowder, or other explosive, dangerous, or noxious substance
or thing, or any such machine, engine, instrument, or thing, is suspected
to be made, kept, or carried for the purpose of being used in committing
any of the felonies of this Act mentioned, upon reasonable oause assigned
upon oath by any person, may issue a warrant under his hand and seal for
searching in the day-time any house, mill, magazine, storehouse, ware-
house, shop, cellar, yard, wharf, or other place, or any carriage, waggon,
cart, ship, boat, or vessel, in which the same is suspected to be made, kept,
or carried for such purpose as hereinbefore mentioned ; and every person
acting in the execution of any such warrant shall have, for seizing,
removing to proper places, and detaining all such gunpowder, explosive,
dangerous, or noxious substances, machines, engines, instruments, or
things, found upon such search, which he shall have good cause to suspect
to be intended to be used in committing any such offence, and the barrels,
packages, cases, and other receptacles in which the same shall be, the

(w) As to other punishments see 54 & 55 (z) Taken from 9 & 10 Vict. o. 25, s. 8.

Vict. u. 69, s. 1, pp. 211, 212. The words There is a hke provision in 24 & 25 Vict,

omitted are repealed. c. 97, s. 54.

(x) E. U.Saunders, 14Cox,180,Denman, J. (a) The words omitted were repealed in

(y) Taken from 9 & 10 Vict. c. 25, s. 6. 1893 (S. L. R.).

CHAP. IV.] Of the Use of Explosives, Corrosives, c&c. 869

same powers and protections which are given to persons searching for
unlawful quantities of gunpowder under the warrant of a justice by the
Act passed in the session holden in the 23 & 24 Vict. c. 139 . . . '(h).

By the Explosive Substances Act, 1883 (46 & 47 Vict. c. 3), s. 2, •' Any
person who unlawfully and maliciously causes by any explosive sub-
stance an explosion of a nature likely to endanger life, or to cause serious
injury to property, shall, whether any injury to person or property has
been actually caused or not, be guilty of felony, and on conviction shall
be liable to penal servitude for life, or for any less term (not less than
the minimum term allowed by law) (c) or to imprisonment with or without
hard labour for a term not exceeding two years.'

By sect. 3, ' Any person who within or (being a subject of His Majesty)
without His Majesty's dominions unlawfully and maliciously^

(a) does any act with intent to cause, by an explosive substance, or
conspires to cause by an explosive substance, an explosion in the
United Kingdom of a nature likely to endanger life or to cause
serious injury to property, or,

(b) makes or has in his possession or under his control any explosive
substance with intent by means thereof to endanger life or cause
serious injury to property in the United Kingdom, or to enable
any other person by means thereof to endanger life or cause
serious injury to property in the United Kingdom,

shall, whether any explosion does or does not take place, and whether any
injury to person or property has been actually caused or not be guilty of
felony, and on conviction shall be liable to penal servitude for a term
not exceeding twenty years (d), or to imprisonment with or without
hard labour for a term not exceeding two years, and the explosive
substance shall be forfeited.'

By sect. 4 (1), 'Any person who makes or knowingly has in his
possession or under his control any explosive substance under such
circumstances as to give rise to a reasonable suspicion that he is not
making it, or does not have it in his possession or under his control for a
lawful object, shall, unless he can shew that he made it, or had it in his
possession, or under his control for a lawful ob j ect, be guilty of felony, and on
conviction shall be liable to penal servitude for a term not exceeding four-
teen years (e), or to imprisonment for a term not exceeding two years with
or without hard labour, and the explosive substance shall be forfeited (/ ).

' (2) In any proceeding against any person for a crime under this
section, such person and his wife or husband, as the case may be, may,
if such person thinks fit, be called, sworn, examined, and cross-examined
as an ordinary witness in the case ' (g).

(b) There is a like provision in 24 & 25 (c) Nor less than three years, a«ie,p. 211.
Vict. c. 97, s. 55. 23 & 24 Vict. u. 139 was (/) If several persons are connected in a
repealed by the Explosives Act, 1875 (38 common design to have an explosive sub-
& 39 Vict. 0. 17), o. 122. By s. 86 of the Act stance made for an unlawful purpose, each
of 1875 the power of search for gunpowder of the confederacy is responsible in respect
under the repealed enactment is now exer- of such articles as are in the possession of
cised under the Act of 1875. others for the carrying out of their common

a. 1, ante, p. 211. (g) As to present position of this sub-

(d) The minimum term is three years ; section see 61 & 62 Vict. c. 36, post, Bk.
vide ante, p. 211. xiii. c v.

870 Of the. Use of Explosives, Corrosives, &c. [BOOK ix.

By sect. 5, ' Any person who within or (being a subject of His Majesty)
without His Majesty's dominions by the supply of or solicitation for
money, the providing of premises, the supply of materials, or in any
manner whatsoever procures, counsels, aids, abets, or is accessory to the
commission of any crime under this Act, shall be guilty of felony, and
shall be liable to be tried and punished for that crime as if he had been
guilty as a principal.' {Vide ante. Book I. Chapter V.)

Sect. 6 gives power to the Attorney- General, where he has reason to
believe that a crime has been committed under the Act, to authorise any
justice of the peace to hold an inquiry. The evidence taken at such
inquiry is, however, not to be used against the witness giving such evidence
except in case of perjury. Absconding witnesses may be arrested.

By sect. 7 (1), ' If any person is charged before a justice with any
crime under this Act, no further proceeding shall be taken against such
person without the consent of the Attorney-General, except such as the
justice may think necessary by remand or otherwise to secure the safe
custody of such person.

' (2) In framing an indictment the same criminal act may be charged
in different counts as constituting different crimes under this Act, and
upon the trial of any such indictment the prosecutor shall not be put to
his election as to the count on which he must proceed.

' (3) For all purposes of and incidental to arrest, trial, and punish-
ment, a crime for which a person is liable to be punished under this Act,
when committed out of the United Kingdom, shall be deemed to have
been committed in the place in which such person is apprehended or is in
custody.

' (4) This Act shall not exempt any person from any indictment or
proceeding for a crime or offence which is punishable at common law or by
any Act of Parliament other than this Act ; but no person shall be
punished twice for the same criminal act ' Qi).

Sect. 8 deals with the search for the seizure of explosive substances (i),
and by sect. 9 (1), ' The expression " explosive substance " shall be deemed
to include any materials for making any explosive substance, also any
apparatus, machine, implement, or materials used or intended to be used
or adapted for causing or aiding in causing any explosion in or with any
explosive substance, also any part of any such apparatus, machine, or
implement' (/).

Any part of a vessel which, when filled with an explosive substance,
is adapted for causing an explosion, is an explosive substance (h).

(h) Vide ante, pp. 27, 31, (j) The Act applies to the whole of the

(j) It applies ss. 73-75, 89 and 96 of the United Kingdom, vide s. 9 (1) (2).
Explosives Act, 1875 (38 & 39 Vict c. 17). {*;) R. v. Charles, ante, p. 869.

. ( 870a )

CANADIAN NOTES.

Sec. 1. — Of Attempting to Choke or to Injure by Poison or

Explosives.

Of Attempting to Choke, etc., and Using Drugs in Order to Commit
Offences. — Code see. 276.

Sec. 2. — Of the Use of Poison to Commit Crime.

Every one is guilty of an indictable offence and liable to fourteen
years* imprisonment who unlawfully administers to, or causes to be
administered to or taken by any other person, any poison or other
destructive or noxious thing, so as thereby to endanger the life of such
person, or so as thereby to inflict upon such person any grievous
bodily harm. Code sec. 277.

Every one is guilty of an indictable offence and liable to three
years' imprisonment who unlawfully administers to, or causes to be
administered to or taken by, any other person any poison or other
destructive or noxious thing, with intent to injure, aggrieve or annoy
such person. Code sec. 278.

Sec. 3. — Of the Use of Explosives, Corrosives, etc., for Criminal

Purposes.

Causing Bodily Injury. — Code sec. 279.
Using with Intent to Harm. — Code sec. 280.

(871)

CHAPTEE THE FIFTH.

OF OFFENCES RELATING TO RAILWAYS AND PASSENGERS THEREON.

Although, perhaps, it may be departing from a strictly accurate
distribution of offences to collect the clauses creating offences relating
to railways and railway trains in one chapter, yet, as such a course
appears to be likely to be of more practical utility, it has been adopted.

By the Railway Regulation Act, 1840 (3 & 4 Vict. c. 97, s. 13), ' It
shall be lawful for any officer or agent of any railway company, or for
any special constable duly appointed, and all such persons as they mav
call to their assistance, to seize and detain any engine driver, guard,
porter, or other servant in the employ of such company who shall be found
drunk while employed upon the railway, or commit any offence against
any of the byelaws, rules or regulations of such company, or shall wil-
fully, maliciously, or negligently do or omit to do any act whereby the life
or limb of any person passing along or being upon the railway belonging
to such company, or the works thereof respectively, shall be or might be
injured or endangered, or whereby the passage of any of the engines,
carriages, or trains shall be or might be obstructed or impeded, and to
convey such engine driver, guard, porter, or other servant so offending,
or any person counselling, aiding, or assisting in such offence, with all
convenient despatch, before some justice of the peace for the place within
which such offence shall be committed, without any other warrant or
authority than this Act ; and every such person so offending, and every
person counselling, aiding, or assisting therein as aforesaid, shall, when
convicted before such justice as aforesaid (who is hereby authorised and
required, upon complaint to him made, upon oath, without information
in writing (a), to take cognisance thereof, and to act summarily in the
premises), in the discretion of such justice, be imprisoned, with or without
hard labour, for any term not exceeding two calendar months, or, in the
like discretion of such justice, shall for every such offence forfeit to His
Majesty any sum not exceeding ten pounds, and in default of pay-
ment thereof shall be imprisoned, with or without hard labour as
aforesaid . . .'(h).

By sect. 14, ' Provided always, and be it enacted, that (if upon the
hearing of any such complaint he shall think fit) it shall be lawful for such
justice, instead of deciding upon the matter of complaint summarily, to
commit the person or persons charged with such offence for trial for the

(a) Qu. whether this exception to the to imprisonment in default of paying the

general rules under the Indiiotable Offences fine were repealed in 1884(47 & 48 Vict.

Act, 1848 (U & 12 Vict. c. 42) or the c. 43, s. 4), as having been superseded by

Summary Jurisdiction Acts is still in force. s. 5 of the Summary Jurisdiction Act, 1879

(6) The provisions of the section as (42 & 43 Vict. u. 49).

872 Of Offences Relating to Railwaijs, &c. [book ix.

same at the Quarter Sessions for the county or place wherein such offence
shall have been committed, and to order that any such person so com-
mitted shall be imprisoned and detained in any of His Majesty's gaols or
houses of correction in the said county or place in the meantime, or to
take bail for his appearance, with or without sureties, in his discretion ;
and every such person so offending, and convicted before such Court of
Quarter Sessions as aforesaid (which said Court is hereby required to
take cognisance of and hear and determine such complaint), shall be
Uable, in the discretion of such Court, to be imprisoned, with or without
hard labour, for any term not exceeding two years.'

By sect. 21, ' Wherever the word " railway " is used in this Act it shall
be construed to extend to all railways constructed under the powers of
any Act of Parliament, and intended for the conveyance of passengers in
or upon carriages drawn or impelled by the power of steam or by any
other mechanical power ; and wherever the word " company " is used in
this Act it shall be construed to extend to and include the proprietors
for the time being of any such railway, whether a body corporate or
individuals, and their lessees, executors, administrators, and assigns,
unless the subject or context be repugnant to such construction.'

By the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100)
s. 32, (c) ' Whosoever shall unlawfull)'' and maliciously put or throw upon
or across any railway any wood, stone or other matter or thing, or shall
unlawfully and mahciously take up, remove, or displace any rail, sleeper,
or other matter or thing belonging to any railway, or shall unlawfully
and maliciously, turn, move, or divert any points or other machinery
belonging to any railway, or shall unlawfully and maliciously make or
shew, hide or remove, any signal or light upon or near to any railway,
or shall unlawfully and maliciously do or cause to be done any other
matter or thing, with intent, in any of the cases aforesaid, to endanger
the safety of any person travelling or being upon such railway, shall be
guilty of felony, and being convicted thereof shall be liable . . . to be
kept in penal servitude for life ... or to be imprisoned . . . and, if a
male under the age of sixteen years, with or without whipping ' {d).

By sect. 33 (e), ' Whosoever shall unlawfully and maliciously throw,
or cause to fall or strike, at, against, into, or upon any engine, tender,
carriage, or truck used upon any railway, any wood, stone, or other
matter or thing, with intent to injure or endanger the safety of any person

(c) Taken from U & 15 Vict. o. 19, s. 6, In R. o. Court, 6 Cox, 202, the prisoner was
and the word ' unlawfully ' is substituted indicted for throwing a stone against a
for ' wilfully ' throughout. tender with intent to endanger the safety of

(d) For present punishments see 54 & 55 persons on the tender, and it appeared that
Vict. u. 69, s. 1, ante, pp. 211, 212. The the stone fell on the tender, but there was
words omitted are repealed. no person on it at the time, and it was held

(e) Taken from 14 & 15 Vict. c. 19, s. 7. that the section was limited to something
p?he word ' unlawfully ' is substituted for thrown upon an engine or carriage having
' wilfully.' The introduction of the word some person therein, and consequently that
' at ' extends this section to cases where the no offence within the statute was proved,
missile fails to strike any engine or carriage. but this case would clearly come within the
The other words in italics were introduced clause. As to punishing youthful offenders
to meet cases where a person throws into in a summary manner, see 42 & 43 Vict.
or upon one carriage of a train, when he o. 49 (E), 47 & 48 Vict. c. 19 (I), which
intended to injure a person in another supersede 34 & 35 Vict. c. 78, s. 13.'
carriage in the same train, and similar oases.

CHAP, v.] Of Offences Relating to Railways, <&g. 873

being in or upon such engine, tender, carriage, or truck, or in or upon any
other engine, tender, carriage, or truck of any train of which such first-men-
tioned engine, tender, carriage, or truck shall form part, shall be guilty of
felony and being convicted thereof shall be liable ... to be kept in
penal servitude for life ...(/).

An acquittal of the felony created by sect. 32 has been held to be no
bar to a prosecution on the same facts for an offence against s. 33 (g).

By sect. 34, ' Whosoever by any unlawful act (h), or by any wilful
omission or neglect, shall endanger, or cause to be endangered, the safety
of any person conveyed or being in or upon a railway, or shall aid or
assist therein, shall be guilty of a misdemeanor, and being convicted
thereof shall be liable, at the discretion of the Court, to be imprisoned for
any term not exceeding two years, with or without hard labour ' (i).

By the Malicious Damage Act, 1861 (24 & 25 Vict. c. 97) s. 33, it
is a felony unlawfully and maliciously to pull down or destroy a bridge
or viaduct or aqueduct over or under which a railway passes, with intent
to render the bridge, &c., dangerous or impassable {j).

By sect. 35 {k), ' Whosoever shall unlawfully and maliciously put {I)
place, cast, or throw upon or across any railway any wood, stone, or
other matter or thing, or shall unlawfully and maliciously take up, remove,
or displace any rail, sleeper, or other matter or thing belonging to any
railway, or shall unlawfully and maliciously turn, move, or divert any
points or other machinery belonging to any railway, or shall unlawfully
and maliciously make or shew, hide or remove, any signal or light upon
or near to any railway, or shall unlawfully and maliciously do or cause
to be done any other matter or thing, with intent, in any of the cases
aforesaid, to obstruct, upset, overthrow, injure, or destroy any engine,
tender, carriage, or truck using such railway, shall be guilty of felony,
and being convicted thereof shall be liable at the discretion of the Court

(/ ) For present punishments see 54 & 55 twice shouted for the gate-man, who was

Vict. c. 69, s. 1, ante, pp. 211, 212. The in a hut close by, without receiving any

words omitted are repealed. answer, opened the gates himself and

(g) B. V. Gilmore, 15 Cox, 85, Huddle- crossed the line. A passing train collided

ston, B. with the cart and sustained injury. He

(h) Two boys went upon premises of a was indicted under s. 36 of the Malicious

railway company and began playing with a Damage Act, 1861 (24 & 25 Vict. c. 97), and

heavy cart which was near the line. Being s. 34 of the Offences against the Person

started by the boys, the cart ran down an Act, 1861, but the jury acquitted him,

embankment by its own impetus. One boy holding the gate- man to blame. B. v.

tried to divert its course ; the other cried to Strange, 16 Cox, 552. See B. v. Pittwood,

him, ' Let it go.' The cart ran on until it 19 T. L. B. 37.

passed through a hedge and a fence of posts («') Framed from 3 & 4 Vict. c. 97, s. 15,

and rails and over a ditch to the railway, the words of which were, any person who

and it rested so close to the railway lines as ' shall wilfully do, or cause to be done, any-

to obstruct any carriage passing upon them. thing in such a manner as to obstruct any

The boys did not attempt to remove it. It engine or carriage using any railway, or to

was held, that as the first act of removing endanger the safety of persons conveyed in

the cart was a trespass, and therefore an or upon the sames.' The present section

unlawful act, and as the jury found that the extends to any unlawful act and any wilful

natural consequence of it was, that the cart omission or neglect,

ran through the hedge, and so on to the (j) Vide post. Vol. ii. p. 1819.

railway, the boys might be properly con- (Ic) Framed from 14 & 15 Vict. c. 19, ?. 6,

victed under the Offences against the Per- with the substitution of ' unlawfully ' for

son Act, 1861 (24 & 25 Vict. c. 100), s. 34. ' wilfully.'

B. V. Monaghan, 11 Cox, 608 (Ir.), Piggott, (/) Erroneously printed ' cut ' in Bev.

B. The defendant with a cart arrived at Statt. (2nd ed.), Vol. x. p. 710.
the gates of a level crossing, and having

874 Of Offences Mating to Railways, &c. [BooK ix.

to be kept in penal servitude for life ... or to be imprisoned . . . and,
if a male under the age of sixteen, with, or without whipping ' (m).

By sect. 36, 'Whosoever hy any unlawful act, or by any wilful omission
or neglect, shall obstruct or cause to be obstructed (n) any engine or
carriage using any railway, or shall aid or assist therein, shall be guilty of
a misdemeanor, and being convicted thereof, shall be liable, at the
discretion of the Court, to be imprisoned for any term not exceeding two
years, with or without hard labour ' (o).

An acquittal on an indictment for felony under sect. 35 has been
held no bar to a subsequent indictment on the same facts for a
misdemeanor under sect. 36 (p).

Malice. — In the case of an indictment for oSences under the Malicious
Damage Act, 1861, it is not necessary to prove malice against the owner
of the property against which the offence is committed (q). There is
no similar provision in the Offences against the Person Act, 1861.
Maliciously, in the enactments above set forth appears to mean

(m) For present punishments see 54 & 55
Vict. e. 69, s. 1, ante, pp. 211, 211. The
words omitted are repealed.

(n) Where a drunken man got upon a
railway and altered the signals, in conse-
quence of which a luggage train shut off
steam, and was brought ' very near to a.
stand,' it was held there was an ' obstruc-
tion ' within 24 & 25 Vict. c. 97, s. 36. R.
V. Hadfield, L. R. 1 C. C. R. 253 ; 39 L.
J. M. C. 131 ; 11 Cox, 574, Martin, B., diss.
The defendant placed himself on the space
between two lines of railways, at a spot
between two stations, and held up his arms
in the mode used by inspectors of the line
when desirous of stopping a train between
two stations, and the driver of a goods
train, acting upon the supposition that he
was signalled by an inspector to slacken
speed, shut off steam, and reduced his speed
from twenty miles an hour to four miles an
hour, and the defendant by this means was
enabled to jump into the guard's van, and
thereupon the train resumed its natural
speed, and without stopping proceeded on-
ward : Held, that the defendant had unlaw-
fully obstructed the train within the mean-
ing of the above section of the said statute.
R. V. Hardy, L. R. 1 C. C. R. 278 ; 40 L. J.
M. C. 62 : Bovill, C. J., said : ' Upon the
facts stated in this case there can be no
doubt but that the defendant made a signal
by holding up his arms in the mode used by
inspectors of the line. He thereby made a
signal to the driver of the train with the
intention of inducing him to reduce the
speed of his train, and the driver did so in
consequence ; so there can be no doubt but
that he in one sense obstructed the train ;
but the question is raised whether s. 36
of 24 & 25 Vict. c. 97 did not contemplate
a physical obstruction. If the words used
had been " whosoever shall obstruct the
line of railway," there might have been
ground for that contention, but those

are not the words used. S. 36 enacts
that, " whoever by any unlawful act, or by
any wilful omission or neglect, shall obstruct
or cause to be obstructed any engine or
carriage using any railway," &c. That
section refers to acts of wilful omission or
neglect, which shews that acts of physical
obstruction of the line were not alone
contemplated. That section seems rather
to point to acts of servants which might
effect the stoppage of the carriages of a
train. But all doubt is removed by refer-
ence to s. 35, which provides against the
maliciously doing certain acts which are
enumerated to be placing objects upon the
railway, removing part of a line, turning
the points, and " making or shewing, hiding
or removing, any signal, &c.," and " any
other matter or thing " with intent to ob-
struct. The acts there enumerated are
clearly not matters necessarily of physical
obstruction. The acts contemplated by
s. 36 must be taken to be ejusdem generis
with those in s. 35 ; and the same con-
struction must be put on both sections.
" Any unlawful act " in s. 36 includes
the acts mentioned in s. 35, therefore on
that point this case is clear, and R. v. Had-
field was decided on the same principle.
In that case, however, there was an altera-
tion made of an actual fixed signal belong-
ing to the line ; but the words of this in-
dictment following the statute are " by
making a signal," which the defendant
undoubtedly did, and therefore is within
the statute. The two cases are not dis-
tinguishable.'

(o) Taken from 3 & 4 Vict. o. 97, a. 15.
In place of the words in italics that section
had ' shall wilfully do or cause to be done
anything in such manner as to.'

(p) R. V. Gilmore, 15 Cox, 85, Huddle-
ston, B. ; vide post, Vol. ii. p. 1982, ' Autrefois
acquit.'

(q) 24 & 25 Vict. c. 97, s. 58, posi, p. 1771.

CHAP, v.] Of Offences Relating to Railways, &c. 875

deliberately and intentionally or recklessly, as distinct from inadvertently
or accidentally {qq).

Upon an indictment on 3 & 4 Vict. c. 97, s. 15 (r), it appeared that the
railway was constructed under an Act of Parliament, and was intended
for the conveyance of passengers in carriages drawn by steam, but that
at the time of the offence the conveyance of passengers for hire had not
commenced, and the traffic was confined to the carriage of materials and
workmen. A railway truck was placed by the prisoners across the
railway so as to obstruct the passage of any carriage and endanger the
safety of persons conveyed therein, but its position was discovered, and it
was removed before any collision occurred ; it was objected that the case
was not within the statute — 1st, because the railway was not used for
the conveyance of passengers for hire ; 2ndly, because no actual obstruc-
tion took place. On a case reserved, it was held that the case was within
the statute. It must be assumed that the railway was completed, and
that all that required to be done was to open it for the public traffic. The
case came within both branches of the section ; there was an obstruction
put on the line by the prisoners, and it was put in such a position so as to
endanger the safety of the persons conveyed. It was contended that there
could be no obstruction until some train were absolutely obstructed ; but
such a construction could not be maintained. The object of the legislature
was obviously to prevent any disaster to those using the railway, and to
punish those who put obstructions in such a manner as was likely to cause
such disaster. The case was, therefore, within the intention of the statute ;
and though, in the ordinary course of things, it would generally be after
the railway was fully opened that the public required to be protected, yet
an obstruction before that time was within the mischief as well as the
words of the statute (s).

On an indictment on 3 & 4 Vict. c. 97, s. 15 (r), for throwing a stone upon
a railway in such a manner as thereby to endanger the safety of one G. C.
and of divers other persons being conveyed on the engines and carriages
then using the railway, it appeared that the defendant was on a bridge
over the railway, and let drop a stone on a train that was passing ; the
stone was a thin flat stone, and the train was traveUing at the rate of
about fifteen miles an hour. The railway was opened in January, 1845,
but no Act of Parliament was obtained until the July following. It was
objected that this railway was not constructed under an Act of Parliament,
but Alderson, B., held that the effect of the definition of railway in the
interpretation clause {t), was to extend and not to weaken the effect of
sect. 15 (m). And he told the jury, ' there are two propositions for you
to consider :— First, did the defendant wilfully cast or drop this stone
on the railway ? and secondly, did the casting that stone on the railway
in the manner in which it was cast endanger the safety of any of the
persons traveUing on the railway at that time ? If you are satisfied on both
these points, he is guilty. If the defendant had this stone in his hand

(qq) Vide R. v. Latimer, 17 Q.B.D. 359; («) Ante, note (r). Alderson, B.. said

R. V. Senior [1899], 1 Q.B. 283. it would have been wiser if a count had

(r) Repealed arfd replaced by 24 & 25 been inserted at common law for throwing

Vict. c. 97, s. 36 ; c. 100, s. 34. a stone at a railway carriage, which is an

(s) R. V. Bradford, Bell, 268 (C. C. R.). offence at common law.

\t) S. 21, ante, p. 872.

876 Of Offences Mating to Railways, dc. [book t±.

at the. time when the train was passing, and it dropped accidentally from
his hand on the railway, you should acquit him ; for that which occurs
by accident cannot be said to be wilful. Should you think that the
defendant did cast the stone on the railway wilfully, the next question is,
was it cast there by him under such circumstances as to endanger the
safety of G. C, the guard, the engineer, or any of the passengers or persons
in the carriages ? Now that would depend very much on the rate at
which the train was proceeding at the time, and the weight and the size
of the stone dropped. The former is material, because it is the same thing
whether I throw a stone at your head or you run your head against the
stone. If, therefore, the train were coming along at the rate of fifteen
miles an hour, it would strike with that velocity a stone that meets it.
You might drop a stone on a broad- wheeled waggon without doing any
harm ; but it may be very different when you drop it on a macltine
going at an enormous rate. Suppose a passenger in this train, going at
the rate of fifteen miles an hour, had put his head out of the window,
or the guard were to do so, which his duty might render necessary, a blow
from a stone of this size and weight certainh'' might endanger his safety.'
The jury found that the defendant foolishly dropped the stone on the
railway, but not with the intention of doing any injury ; Alderson, B. :
' The intention of the prisoner in dropping the stone is not the question.
It is, " did he purposely drop the stone on the railway, and would the effect
of the stone's being so dropped be to endanger the safety of the persons
on the railway V'{v).

Where on an indictment under 3 & 4 Vict. c. 97, s. 15, it appeared
that large quantities of earth and rubbish were found placed across the
railway, and the prosecutor's case was that this had been done by the
defendant wilfully and in order to obstruct the use of the railway ; and
the defendant's case was, that the earth and rubbish had been accidentally
dropped on the railway ; Maule, J., told the jury that if the rubbish had
been dropped on the rails by mere accident, the defendant was not guilty ;
but ' it was by no means necessary, in order to bring the case within this
Act, that the defendant should have thrown the rubbish on the rails
expressly with the view to upset the train of carriages. If the defendant
designedly placed these substances, having a tendency to produce an
obstruction, not caring whether they actually impeded the carriages or
not, that was a case within the Act.' And on the jury asking ' what was
the meaning of the term '-wilfully^' used in the statute ?' the learned judge
added, ' he should consider the act to have been wilfully done, if the
defendant intentionally placed the rubbish on the hne, knowing that it
was a substance likely to produce an obstruction ; if, for instance, he
had done so in order to throw upon the company's officers the necessary
trouble of removing the rubbish ' (w).

In another case upon 3 & 4 Vict. c. 97, s. 15, it was strongly intimated
that the neglect of a driver and stoker of an engine to keep a good look-out
for signals, according to the rules of the railway company, whereby a
collision occurred, and the safety of the passengers endangered, was not

(v) R. V. Bowray, 10 Jurist, 211. and R. v. Senior [1899], 1 Q.B. 283, as to

(w) R. V. Holroyd, 2 M. & Rob. 339. the meaning of ' wilfully.'
See Roberts v. Preston, 9 0. B. (N. S.) 208 ;

CHAP, v.] Of Offences Relating to Railways, dc. 877

an offence within the section (x). But such neglect may come within the
words of 24 & 25 Vict. c. 97, s. 36, or 24 & 25 Yict. c. 100, s. 34, ante,
p. 873, or both, ante, p. 874.

On an indictment under 14 & 15 Vict. c. 19, s. 6 (y), for maliciously
placing a stone upon a railway with intent to obstruct the carriages
travelling thereon, it appeared that the prisoners, two boys, were seen
to go upon the railway, and whilst one held the lever by which the points
were turned, so as to separate two portions of the rails, the other dropped
a stone between them, so as to keep them separated ; the result would
have been, had the act not been detected, that the carriages would have
been thrown off the rail. No motive was suggested except that of wanton
mischief. The jury were told that it was not necessary that the prisoners
should have entertained any feeling of malice against the railway company
or against any person travelling upon it ; it was quite enough to support
the charge if the act was done mischievously and with a view to cause
an obstruction of a train (2).

The prisoner was indicted under 14 & 15 Vict. c. 19, ss. 6, 7 (a), for
mahciously throwing a torch at a railway truck with intent in one count
to injure it, in another to endanger the safety of persons travelling in the
truck ; there was, however, no one on the truck upon which the prisoner
let the torch fall ; and Channell, B., held that there was no evidence to
support the second count (b).

On an indictment under 14 & 15 Vict. c. 19, s. 7 (a), for maliciously
throwing a stone into a railway carriage with intent to endanger the
safety of any person in it, it appeared that there had been considerable
popular excitement against a person who was about to travel by the train,
and there was a crowd assembled at the time of its departure, and the
prisoner had thrown a stone intending to hit him, but without any previous
ill-will. It was urged that the statute did not apply ; its objects was to
protect passengers by railways, and not to afford any additional protection
against common assaults. Erie, J., after consulting Williams, J., said :
' Looking at the preamble of the sections relating to this class of offences,
which recites that it is " expedient to make further provision for the
punishment of aggravated assaults," and looking also to the provision of
these clauses as indicated by the terms of sect. 6, immediately preceding
the section upon which this indictment is framed, I consider that the
" intent to endanger the safety of any person " travelling on the railway,
spoken of in both sections, must appear to have been an intent to inflict
some grievous bodily harm, and such as would sustain an indictment for

(x) R. V. Pardenton, 6 Cox, 247, Cress- words ' matter or thing ' were ejusdem

well and Williams, JJ. generis with the other words employed, and

(y) S. 6 was repealed in 1861, and re- did not include the case of a combustible

placed by 24 & 25 Vict. c. 100, o. 32, ante, which could only injure a truck by means

p. g72. of fire ; for otherwise the eighth section

(z) R. V. Upton, Greaves' Gampb. Acts, would be nugatory, and that section requires

92 ; 5 Cox, 298, Wightman, J. proof of an intent to destroy the carriage by

(a) S. 7 was repealed in 1861 and fire. Now, this is an error, for b. 8 has

replaced by 24 & 25 Vict. c. 100, s. 33, ante, nothing to do with railway carriages, but

p 872. only with railway buildings, and it is quite

(6) R. V. Sanderson, 1 F. & F. 37. See clear that s. 6, 7, include everything

R. V. Court, ante, p. 872, note (e). It is whatsoever that is used with any of the

reported to have been objected that the intents therein mentioned.

878 Of Offences Relating to Railways, &c. [book ix.

assaulting or wounding a person with intent to do some grievous bodily
harm ; but as that is a question of degree, which it is impossible to define
further than in those terms, it must be a question for the jury, upon the
facts, whether there has been such an intent ' ; and his lordship directed
the jury, that ' in order to convict the prisoner they must be satisfied
that he intended to inflict on the person at whom he aimed some grievous
bodily harm ' (c).

(c) R. V. Rooke, 1 F. & F. 107. ' This
case does not appear to have been argued
on the part of the Crown, and, with all
deference to the very learned judges, it
clearly proceeded on a mistake. 14 & 15
Vict. c. 19, contained a number of enact-
ments which had no bearing whatever on
each other ; the Act was framed to provide
for totally different matters, which at that
time called for a remedy for each. Ss. 1
and 2 related to persons found by night with
intent to commit felonies. S. 3 related
to administering chloroform. S. 4 and
5 related to aggravated assaults. Then
S3. 6, 7 and 8 were railway clauses, and it
is perfectly clear that, although a person
who committed an ofEence within either
s. 6 or s. 7, may commit an assault,
it was not essential to prove an assault in
any offence contained in them, and no in-
dictment upon them ever does allege an
assault. They were most carefully framed

for the very purpose of including every
case where there was an " intent to injure
or endanger the safety of any person " ;
and those words were selected as much
more general than " with intent to do griev-
ous bodily harm." It is also a fallacy to
suppose that, even if the sections were to
be construed together, s. 4 warrants this
decision ; for though one branch of it is
" inflict any grievous bodily harm," the other
is " cut, stab, or wound " without any
aggravation ; so that a wound, however
slight, and given without any intention to
inflict grievous bodily harm, is within the
section. Every indictment must allege the
intent to be to injure or endanger the safety
of some person, and it is very confidently
submitted that the only proper question to
be left to the jury in every case is, did the
defendant do the act with intent to injure
or endanger the safety of that person ? '
C. S. G.

( 878a )

CANADIAN NOTES.

OF OFFENCES RELATING TO RAILWAYS AND PASSENGERS THEREON.

Acts Done with Intent to Injure Passengers.— Code sec. 282.

Wantonly Endangering Safety of Persons on Railways. — Code
sec. 283.

Omission or Neglect of Duty. — There must be a duty to do the
thing omitted to be done; a promise, not constituting a contract,
made by a railway manager to do something which the company was
under no legal obligation to do does not constitute a "duty" under
this section. Ex parte Brydges, 18 L.C. Jur. 141.

Wilfully Breaking Contract with Railway Under Agreement to
Carry Mails. — Code sec. 499.

Railway Company Wilfully Breaking Contract to Carry Mails. — -*
Code sec. 499.

Damage to Railway with Intent to Render Impassaile. — Code sec.
510.

Injuries Affecting Railway. — Code sec. 517.

Obstructing Railways. — Code sec. 518.

Damaging Goods on a Railway. — Code sec. 519.

Offences Relating to Operation of Railway. — ^R.S.C. (1906), c. 37.

Conviction, etc. — A conviction under Code sec. 517 (/) for doing
an unlawful act on a railway in a manner likely to cause danger is
bad if it does not disclose the nature of the unlawful act. The King
V. Porte, 14 Can. Cr. Cas. 238.

( 879 )

CHAPTEE THE SIXTH.

OF ASSAULT AND BATTERY.

Sect. I. — Definition and Punishment.

Many of the crimes classed as ofiences against the person involve
assault and battery.

An assault is an attempt or offer to apply force of any kind to another
person, by striking, touching, or moving him or otherwise applying any
direct or indirect force to him : as by striking at another with a stick or
other weapon, or without a weapon, though the party striking misses
his aim. So, drawing a sword or bayonet, or even holding up a fist in a
menacing manner, throwing a bottle or glass with intent to wound or
strike, presenting a gun at a person who is within the distance to which
the gun will carry, pointing a pitchfork at a person who is within reach,
or any other similar act, accompanied with such circumstances as denote
at the time an intention, coupled with an actual or apparent present
ability, of using actual force against the person of another, will amount
to an assault (a).

The Queensland Criminal Code, 1899 (b), appears correctly to embody
the common law in saying that force in the definition of assault and
battery includes light, heat, electrical force, gas, odour, or any other
substance or thing whatever if applied in such a degree as to cause
injury or personal discomfort.

No words, however provoking, can amount to an assault (c). Words
used at the time of the transaction may so explain the intention of the
party as to qualify his act, and prevent it from being deemed an assault.
Thus where A. laid his hand upon his sword, and said, ' If it were not
assize-time, I would not take such language from you,' it was held
not to be an assault, on the ground that he did not design to do the other
party any corporal hurt at that time, and that a man's intention must
operate with his act in constituting an assault (d).

The threat or attempt must be of immediate and not of future or
contingent injury.

If a person presents a pistol, purporting to be a loaded pistol, so near
as to produce danger to life if the pistol had gone ofT, it is an assault in

(a) 1 Hawk. o. 62, s. 1. Bao. Abr. tit. prepared by the Eight Hon. Sir S. Griffith

'Assault and Battery' (A.). 3 Bl. Com. now Chief Justice of the High Court of the

120. Burn Just. (30th ed.) tit. ' Assault AustraUan Commonwealth.
and Battery.' 1 East, P. C. 406. Bull (c) 1 Hawk. o. 62, s. 1. Bao. Abr. tit.

(N. P.) 15. Selw. (N.P.) tit. 'Assault and "Assault and Battery' (A.). There were

Battery,' 1. Addison, Torts (8th ed.) 158. many ancient opinions to the contrary.
Dft. Criminal Code, 1880, cl. 196. {d) Tuberville v. Savage, 1 Mod. 3 ; 86

(6) 63 Vict. No. 9, s. 245. This code was E, K. 684 ; 2 Keb. 545.

880 Of Battery. [book ix.

point of law, although in fact the pistol is unloaded. Parke, B., said :
' My idea is, that it is an assault to present a pistol at all, whether loaded
or not. If you threw the powder out of the pan, or took the percussion
cap off, and said to the party this is an empty pistol, then that would
be no assault, for there the party must see that it was not possible that
he should be injured ; but if a person presents a pistol which has the
appearance of being loaded, and puts the party into fear and alarm, that
is what it is the object of the law to prevent (e).

However, where in an action for assault and presenting a loaded pistol
at the plaintiff, it appeared that the defendant cocked a pistol, and pre-
sented it at the plaintiff's head, and said that if he was not quiet he would
blow his brains out ; but there was no evidence that the pistol was loaded,
Abinger, C.B., held, that if the pistol was not loaded it would be no
assault (/). And in another case Tindal, C. J., ruled in the same way {g).
Pointing a loaded gun at half-cock at a person is an assault ; for there
is a present ability of doing the act threatened, as the gun can be cocked
in an instant (h).

It is not every threat, where there is no actual personal violence, that
constitutes an assault ; there must, in all cases, be the means or present
capacity of carrying the threat into effect. If, therefore, a man is ad-
vancing in a threatening attitude, e.g. with his fist clenched, to strike
another, so that his blow would almost immediately have reached such
person, and is then stopped, it is ah assault in law, if his intent were to
strike the other man, though he was not near enough at the time to have
struck him {i).

Where the plaintiff was in the defendant's workshop and refused to
leave it, and the defendant and his workmen surrounded him, and tuck-
ing up their sleeves and aprons, threatened to break his neck, if he did
not go out, and fearing that the men would strike him if he did not do
so, the plaintiff went out ; it was held that this was an assault ; for there
was a threat of violence exhibiting an intention to assault, and a present
ability to carry the threat into execution {j).

(e) R. V. St. George, 9 C. & P. 483, 490. same as ii the gun were loaded ; for the act

E. y. St. George is over-ruled on another of the party presenting the gun led to the

point by R. v. Duckworth [1892], 2 Q.B. natural consequence that the party at whom

83, ante, p. 842. it was presented should defend himself, and

(/ ) Blake v. Barnard, 9 C. & P. 626. the party presenting the gun ought not to

See also an anonymous case, cor. Erskine, be permitted to shew the facts to be other-

J., cited by Ludlow, Serjt., 9 0. cfe P. 492. wise than he had himself held them out

It seems that a very reasonable distinction to be. 0. S. 6.

might be made in cases of this kind. If a (g) R. v. James, 1 C. & K. 530. In R. v.

person presents a gun at another, knowing Baker, 1 0. & K. 254, Rolfe, B., seems to

it not to be loaded, there can be no intent have held the same opinion,

to injure in any event, and therefore he (h) Osborn v. Veitch, 1 F. & F. 317,

ought not to be criminally responsible ; but Willes, J.

if the person, at whom such an unloaded (i) Stephens v. Myers, 4 0. & P. 349,

gun was presented did anything in self- Tindal, C.J.

defence, his justification, whether in a civil (j) Read v. Coker, 13 C. B. 850.
or criminal proceeding, ought to be just the

American Note.

Bishop (Amer. Grim. Law, ii. 32) agrees rather than with that of Blake v. Barnard
with the doctrine in B. v. St. George, and R. v. James.

CHAP. VI.] Definition of Battery. 881

The plaintiff was walking on a footpath by a roadside, and the defen-
dant, who was on horseback, rode after him at a quick pace ; the plaintiff
then ran away into his own garden, and the defendant rode up to the gate,
and shook his whip at the plaintiff, who was about three yards off ; it was
held, that if the defendant rode after the plaintiff, so as to compel him to
run into his garden for shelter to avoid being beaten, it was an assault (k).

Battery. — A battery involves something more than an attempt to apply
force to another person ; but any force whatsoever, be it ever so small,
being actually applied to the person of a man adversely (i.e. without his
consent), in an angry or revengeful, or rude or insolent manner, such as
spitting in his face, or in any way touching him in anger, or violently jostling
him out of the way, or throwing water over him, is a battery in law (l).
For the law cannot draw the line between different degrees of violence,
and, therefore, totally prohibits the first and lowest stage of it ; every
man's person being sacred, and no other having a right to meddle with it
in any the slightest manner (m). Every battery includes an assault (n).

To cut a man's clothes whilst on his person is an assault, although
there is no intention to inflict any bodily injury, and in the ordinary case
of a blow on the back there is clearly an assault, though the blow is
received by the coat on the person (o).

Where a policeman was stationed at a door to prevent a person from
entering, it was held that, if he was entirely passive, like a door or a
wall put to prevent that person from entering that room, and simply
obstructing the entrance of that person, no assault was committed (p).

The injury need not be effected directly by the hand of the party.
Thus there may be an assault by encouraging a dog to bite ; by riding
over a person with a horse ; or by wilfully and violently driving a cart,
&c., against the carriage of another person, and thereby causing bodily
injury to the persons travelling in it (q). It is not necessary that
the assault should be immediate ; thus where a defendant threw a lighted
squib into a market place, which being tossed from hand to hand by
different persons, at last hit the plaintiff in the face, and put out his eye,
it was adjudged that this was actionable as an assault and battery (r).
And the same has been held where a person pushed a drunken man
against another, who was thereby hurt (s), but if such person intended
doing a right act, as to assist the drunken man, or to prevent him from
going along the street without help, and in so doing a hurt ensued, he
would not be answerable (t).

For an assault or battery to be criminal it must be (1) intentional
and not merely accidental, (2) without legal justification or excuse,
and (3) committed without the consent of the person assaulted or struck,

(k) Mortin v. Shoppee, 3 C. & P. 373, Denman, C.J.

Tenterden, C.J. (?) See Hopper v. Reeve, 7 Taunt. 698,

(I) Bac. Abr. tit. 'Assault and Battery' and the precedents for assaults o£ this kind,

(B. ). 1 Hawk. u. 62, a. 2. Pursell v. Horn, Cro. ttro. Comp. 82. 3 Chit. 0. L. 823, 824,

8 A & E 602. 825. 2 Starkie, Cr. PL '2d ed.], 388, 389.

(m) 4 Bl. Com. 120. {r) Scott v. Shepherd, 2 W. Bl. 892 ; 3

(?i)Termesde la Ley, 'Battery.' 1 Hawk. Wils. K.B. 403: 1 Smith, L.C. (Uth ed.),

c. 62, o. 1. Bao. Abr. tit. 'Assault and 457.

Battery' (A.). (s) Short v. Lovejoy [1752], Bull. (N.

(o) R. V. Day, 1 Cox, 207, Parke, B. P.) 16, Lee, C.J.

(p) Innes v. Wylie, 1 C. & K. 257, («) Id. Ibid.

VOL. I. ^ ^

882

Of Assault and hattery.

[BOOK iX.

or under circumstances which make consent no defence by reason of the
youth or mental incapacity of the person assaulted or because the consent
is extorted by fraud or force or is otherwise not really giveUj or is not by
law allowed to be given.

Intention, Accident; — It is not an assault or battery to lay a hand
gently on another without hostile intention, but merely to attract his
attention (m), nor, it ia saidjto lay hands gently on a man against whom a
warrant is out and to tell the officer holding the warrant that that is the
man wanted {v).

It has been held not to be an actionable trespass to the person when
a beater was wounded by a shot which glanced off a tree (w). This rule
excluding civil liability in such a case applies a fortiori to criminal liability.

If one soldier accidentally hurts another by discharging a gun in
exercise, it is not a battery {x). And it is no battery if, by a sudden fright,
a horse runs away with his rider, and runs against a man {y). So where
upon an indictment for throwing down skins into a man's yard, being a
public way, by which a person's eye was beaten out, it appeared by the
evidence that the wind blew the skin out of the way, and that the injury
was caused by this circumstance, the defendants were acquitted (z).

Accident is not a defence when the defendant meaning to strike one
person and unintentionally strikes another person. Thus if one of two
persons, who are fighting, strikes at the other, and hits a third person
unintentionally, this is a battery, and cannot be justified on the ground
that it was accidental {a).

seated on the box of his carriage, which
was drawn by two horses and driven by a
man then under his control, came down a,
cross street. The horses, frightened by the
barldng of a dog, ran away. The driver
was unable to hold them in, but told the
defendant to leave them to him. The de-
fendant accordingly sat passive, while the
driver, trying to turn the horses so as to
prevent them from running into a shop
window opposite, pulled them aside towards
the spot where the plaintifE then happened
to be ; but, on nearing her, endeavoured
vainly to draw them away from her. They
ran against her, and she being hurt, sued
the defendant for negligence, and trespass.
The jury found the defendant free from
negligence, and that the occurrence was
mere accident. Held, that he was not
liable in trespass. Holmes v. Mather, L. R.
10 Ex. 261 ; 44 L. J. Ex. 176.

(z) R. V. Gill and another, 1 Str. 190.

(a) James u. Campbell, 5 C. & P. 372,
Bosanquet,J. Cf. Foster, Ci-. L. 261. 'As
the blow, if it had struck the party at whom
it was aimed, would have been a batter_y,
so it was though it struck another person ;
just in the same way as if a blow intended
for A. hits and Idlls B., it will be murder or
manslaughter, according as it would have
been murder or manslaughter if the blow
had hit A. and killed him.' C. S. G. See
R. w. Hunt, 1 Mood. 93. In Hall v. Fearnley,
3 Q.B. 919, it was held that inevitable
accident arising from superior agency is a

(u) Coward v. Baddeley, 4 H. & N. 478 ;
28 L. J. Ex. 260.

(v) 1 Hawk. c. 62, a. 2. Bac. Abr. tit.
* Assault and Battery ' (B.). Griffin v.
Parsons, Gloucester Lent Ass. 1754. Sel-
wyn, N. P. (7th ed.), tit. 'Assault and
Battery,' 26 n. (1).

(w) Stanley v. Powell [1891], 1 Q.B. 86.
This decision is discussed and questioned,
1 Beven, Negligence (3rd ed.), 669.

(x) Weaver v. Ward, Hob. 134. 2 RoUe
Abr. 548. Bac. Abr. tit. ' Assault and Bat-
tery' (B.). But if the act were done with-
out sufficient caution, the soldier would be
liable to an action at the suit of the party
injured ; for no man will be excused from a
trespass, unless it be shewn to have been
caused by inevitable necessity, and entirely
without his fault. Dickenson v. Watson, Sir
T. Jones, 205. Underwood v. Hewson, 1
Str. 595. 2 W. Bl. 896. Selw. (N. P.) tit.
' Assault and Battery,' 27. 1 Beven,
Negligence (3rd ed.) 555.

(y) Gibbons v. Pepper, 4 Mod. 405 ; 2
Salk. 637 ; 1 Ld. Raym. 38. But if the
horse's running against the man were occa-
sioned by a third person whipping him, such
third person would be the trespasser. Bac.
Ab. tit. 'Assault and Battery' (B.). And
upon the principles which have been before
mentioned, such an act in a third person,
causing death to any one, may, under cer-
tain circumstances, amount to felony.
Ante, p. 781. The plaintifE was walking
along a public street when the defendant

CHAP. VI.] Of Lawful Force. 883

The prisoner, in striking at a man with whom he had been fighting,
struck and wounded a woman beside him. He was indicted for unlaw-
fully and maliciously wounding the woman. The jury found that the
blow was unlawful and malicious, but the striking of the woman was
purely accidental, and not such a consequence of the blow as the prisoner
ought to have expected. The prisoner was convicted, and it was held that
the conviction was right (6).

Justifleation of the Use of Force. — The use of force against the
person of another without his assent is in certain cases lawful, e.g.
where the force is used (a) in the due execution of the law, (b) in lawful
correction, (c) in defenee of person or property.

Lawful Arrest. — The right to use force is correlative to the right to
arrest, whether with or without written warrant from a judicial ofiicer (c).

If an officer of justice has a warrant for the arrest of a man whowillnot
suffer himself to be arrested, the officer may lay hands on the person to
be arrested and use such force as is necessary to effect the arrest. And it
may be lawful to lay hands on a man in order to serve civil process upon
him {d).

The force used is limited to that necessary for the purpose of effecting
the object in view, and if there is an excess of violence the officer is guilty
of assault (e). Where one of the marshals of the City of London, whose
duty it was on the day of a public meeting in Guildhall, to see that a
passage was kept for the transit of the carriages of the members of the
corporation and others, directed a person in the front of the crowd to
stand back, and on being told by him that he could not for those behind
him, struck him immediately on the face, saying, that he would make
him, it was held that a more moderate degree of pressure ought to have
been exercised, and some little time given to remove the party in a more
peaceable way, and that consequently the marshal had been guilty of a
too violent exertion of his authority if).

An officer having a warrant to search for an illegal still in the defen-
dant's house, the defendant asked to see the warrant, and it was given
him, and he then refused to return it, upon which the officer endeavoured
by force to retake it, and a scuffle ensued, it was held that the officer was
justified in using so much violence as was necessary to retake the warrant,
and no more {g).

defence under the general issue ; but that a (6) R. v. Latimer, 17 Q.B.D. 359. In

defence which admits that the accident discussing R. v. Pembliton, L. R. 2 C. C. R.

resulted from an act of the defendant must 119, where in throwing a stone at a man the

be pleaded. In an action for assault, where prisoner broke a window, Bowen, J., sug-

the defendant had thrown a stick, and hit gested that, if in R. v. Latimer the facts

the plaintiff, but it did not appear that he were that the prisoner meant to strike a

threw the stick with the intention of hitting pane of glass and hit a person by accident,

the plaintiff ; Rolfe, B., is reported to have it might have been that the malice shewn

held that this was not sufficient to consti- would be insufficient,

tute an assault, as it did not appear for (c) Vide, ante, pp. 721 et seg.

what purpose the stick was thrown ; and it {d) Harrison v. Hodgson, 10 B. & C. 445.

was therefore fair to conclude that it was See 2 RoUe Abr. 546.

thrown for a proper purpose, and that the (e) Levy v. Edwards, 1 C. & P. 40, Bur-
striking of the plaintiff was merely acci- rough, J.

dental. Alderson v. Waistell, 1 C. & K. (/) Imason v. Cope, 5 C. & P. 193,. Tin-

358. But this ruling may well be doubted, dal, C.J.

at all events as far as relates to a civil suit. (</) R. v. Milton, M. & M. 107 ; 3 C. & P.

See ante, p. 882, note (k). C. S. G. 31, Tenterden, C.J.

3l2

884 Of Assault and Battery. [book ix.

The justification extends to persons lawfully acting in aid of the peace
officer and to private persons lawfully engaged in effecting an arrest, and
extends to preventing the escape before or after arrest of the person to be
arrested and to preventing his rescue from others. The causing of death
or grievous bodily harm is justifiable in cases where the arrest is for
felony (h).

Arrest by Railway Officer; — On an indictment for assaulting J. S.,
it appeared that the prisoner got into an empty third-class carriage
proceeding from Manchester to Stoke-upon-Trent, and got out on the
wrong side at North Eoad Station, and being asked by the guard for his
ticket, he said he had none, and had intended to get out at the station for
Crewe. No other demand was made on the prisoner ; but the guard
ordered him to get into' a second-class carriage, and locked the doors.
The train then proceeded to Stoke, a distance of several miles. The
prisoner, on getting out, was asked for his ticket ; and on his not pro-
ducing it, the second-class fare from Manchester to Stoke was demanded.
It not being paid, the policeman at the station collared the prisoner,
who gave him a blow and got away. He was pursued and retaken, when
he cut the policeman's hand. The reason alleged for bringing the prisoner
to Stoke was, that it was the headquarters of the railway authorities, and
there was no mode of dealing with the prisoner at the North Eoad Station.
Wightman, J., told the jury (after stating the facts that occurred at the
North Eoad Station), ' the guard, instead of then taking him on the
specific charge of going so far without his ticket, which perhaps he might
have done, takes him in a second-class carriage to Stoke, several miles out
of the way. A ticket from Manchester to Stoke is there demanded and
afterwards the full fare. It seems to me that this is clearly beyond the
law, and that the railway authorities had no right to demand the fare from
North Eoad to Stoke. I do not give any opinion as to the right to convey
a person refusing to produce his ticket at one station on to another, on the
charge of not paying his fare for that part of the journey which the prisoner
had voluntarily and fraudulently performed ; but whatever might have
been the situation of the parties, if, on demand and refusal of the ticket
or fare at North Road, the charge was there made, and he had been con-
veyed to Stoke for the purpose of dealing with it ; here, the arrest being for
non-payment of the fare to Stoke, the apprehension was illegal, and the
prisoner had a right to resist it ' {i).

Lawful Correction. — A parent may chastise his child (j), a school-
master his pupil (/c), and a master his apprentice (I), if the chastisement
is moderate in the manner, the instrument, and the quality, and the child
is old enough to appreciate correction (m). But an upper-servant cannot
justify beating an under-servant for disobedience to orders (n).

{h) Vide ante, pp. 721, 727. [1) The right to chastise servants is

(i) R. u Mann, 6 Cox, 461. See Chilton «. recognised at common law. R. v. Maw-
London and Croydon Rail. Co., IGM.&W. 2 12. gridge, 17 St. Tr. 57 ; Kel. (J.), 133; and
King V. Met. Dist. Rail. Co., 72 J. P. 294. see 33 Hen. VIII. c. 12, ss. 16, 19. But

(j) 1 Hawk. 0. 60, s. 23 : c. 62, s. 2. except as to servants to whom the master

Halliwell v. Counsell, 38 L. T. (N. S.) 176. is in loco parentis, it cannot now be safely

This parental power is expressly preserved exercised. See Macdonell, Master and Ser-

by 8 Edw. VII. c. 67, s. 37, post, p. 921. vant (2nd ed.), 29, 30.

(i) See Cleary v. Booth [1893], 1 Q.B. (m) R. v. Griffin, 11 Cox, 402, Martin, B.

654, and ante, p. 767- (») R- v. Huntley, 3 C. & K. 142, Piatt, B.

CHAP. \^.] Of Consent. 885

The infliction of corporal punishment under the lawful sentence of a
competent Court (o) is of course justifiable, if the punishment does not
exceed the number of stripes prescribed by the sentence and is inflicted
with the prescribed or a lawful instrument (f).

Use of Force by Commanders of Ships.— OSicers of a ship, whether
of the Royal Navy (q) or the merchant service (r), appear not now to be
entitled to inflict corporal punishment, in port or at sea, on any of the
crew, for disobedience to orders, or for any cause (s), except in the case of
ship's boys in the Royal Navy (t), or apprentices to the sea service (tt).
But the captain can justify the use for the purpose of maintaining good
order and discipline on the ship, such force as he believes on reasonable
grounds to be necessary and as is under the circumstances reasonable.

It was held in an old case that a defendant may justify even a mayhem,
if done by him as an ofiicer in the army, for disobeying orders ; and that
he may give in evidence the sentence of a council of war, upon a petition
against him by the plaintiff ; and that if, by the sentence, the petition is
dismissed, it will be conclusive evidence in favour of the defendant (m).

Where parish officers, by force and against her consent, cut off the
hair of a young woman who was an inmate of a workhouse, it was held an
assault (v).

Consent. — The person assaulted may be too young to appreciate the
nature of the act done or to do more than submit without actually con-
senting to it ; and submission by a child in the hands of an older and
stronger person and possibly acting under fear or a sense of constraining
authority is not equivalent to consent. Where two boys of eight years
of age submitted to indecent acts on the part of a grown-up man in
ignorance of the nature of the acts to be done and done, the man was
held to be rightly convicted of an indecent assault (w).

By the Criminal Law Amendment Act, 1880 (43 & 44 Vict. c. 45), in
the case of an indecent assault on a child of either sex under thirteen, it
is no defence that he or she consented (x).

Fraud. ^A consent obtained by fraud, or threats, or violence, is no
answer to proceedings for assault. Where the defendants told the mother
of a child of which she had been delivered that it was to be taken to a
nursery or institution to be brought up, and they put the child in a bag
and hung it upon some park-pales at the side of a footpath, and it was
likely that the putting a child of so tender an age into a bag and hanging
the bag on the pales would cause its death ; Tindal, C.J., held that the

(o) Vide ante, p. 215. 744, 789.

(p) Flogging is not now inflicted as a (tt) Vide ante, p. 884.

sentence of a court-martial, nor has any («) Lane v. Hegberg, 1698, per Treby,

officer now any right to strike a soldier C.J. ; cited in Bull. (N. P.) 19.

except in necessary defence, or in order to (i>) Forde v. Skinner, 4 C. & P. 239,

effect a lawful arrest. As to former law see Bayley, J.

R. V. Wall, 28 St. Tr. 51, 145. (w) R. v. Lock, L. R. 2 C. C. R. 10 ; 42

(?) See p. 767. L. J. M. C. 5. See R. v. Woolaston, 12 Cox,

(r) See 57 & 58 Vict. c. 60, ss. 220-238. 180.

Macdonell, Master and Servant {2nd ed.), (x) As to consent in the case of sexual

31. offences, vide post, p. 934 et seq. Though a

(s) A contrary opinion seems at one time girl of 12 is old enough to contract a lawful

to have been held. The Agincourt, 1 Hagg. marriage, she cannot consent to unlawful

Adm. 271. Lamb v. Burnett, 1 Cr. & J. 291. carnal intercourse so as to relieve the male

(t) 29 & 30 Vict. 0. 108, s. 56, as modified party to the intercourse from criminal

by the King's Regulations (ed. 1908), Arts. responsibility.

886 Of Assault and Battery. [book ix.

defendants were guilty of an assault ; for the mother gave consent in
reliance on the pretence that the child was to be taken to some institution,
and as that pretence was false, it was no consent at all {y).

Criminal responsibility for the use of any means intended to cause
death nor to the doing of any act which is in itself an offence against
the law, is not removed by the consent of the person on whom they are
used, to the use of the means {z). The same rule applies as to the use of
force likely to cause death or serious hurt, if used with knowledge of the
consequences hkely to ensue and with indifference and recklessness as
to whether death or serious injury would ensue [a).

Consent may be given to acts done in the regular course of a lawful
game (6), such as cricket or football, which, apart from consent, would
be assault. Thus if two, by consent, play at cudgels, or singlestick, or
■\\Testling, and one happens to hurt the other, it would not amount to a
battery, as their intent was lawful and commendable, in promoting
courage and activity (c). In playing such games disregard of the rules
might afford evidence of hostile intent or recklessness, or that the act
done was not of the class of act consented to by the person struck {d).

But this rule does not extend to protect persons who give blows in
a duel with dangerous weapons (e), or in fencing with naked swords (/), nor
in a fight by consent, whether for a prize or not (gr), nor where the
force used is such as to involve a breach of the public peace, and to affect
the public as well as the person struck {h). And where a prize or other
fight takes place, and a number of persons are assembled to witness it, if
they have gone thither for the purpose of seeing the combatants strike
each other, and were present when they did so, they are all in point of
law guilty of an assault ; and there is no distinction between those who
concur in the act and those who fight {i) ; and it is not at all material
which party struck the first blow, for if several are in concert, encouraging
one another and co-operating, they are all equally guilty, though one
only committed the actual assault {j). And if persons are voluntarily

(y) R.«.March, IC. &K.496, Tindal.C.J., other likely to hurt before he was on his
avoided saying whether the act would guard and without warning and death en-
have been an assault if the mother had sued, the want of due and friendly warning
consented to all that was done. The acts would make such act amount to man-
of the prisoners would fall within 24 & 25 slaughter.'
Vict. c. 100, s. 56, post, p. 904. (/ ) 1 Hale, 473.

(z) e.g. illegal operations on women, (g) In the notes to Bao. Abr. ■uhi supra,

ante, p. 756. the case of Boulter v. Clarke, Abingdon Ass.

(a) Ante, p. 756. cor. Parker, C.B., Bull. (N. P.) 16, is re-

(6) As to the unlawfulness of certain ferred to, in which it was ruled that it was

games or sports, vide ante, pp. 785, 786. no defence to allege that the plaintiff and

(c) Bac. Abr. tit. ' Assault and Battery, defendant fought together by consent, the
referring to Dalton, c. 22. Bro. Coron. 229. fighting itself being unlawful ; and the case

(d) See E. v. Bradshaw, 14 Cox, 83 : of Matthew v. OUerton, Comb. 218, is also
charging at football. icferred to as an authority, that if one

(e) Ex parte Barronet, 1 E. & B. 1 ; license another to beat him, such licence is
Dears. 51. In 1 East, P.O. 269, it is said : no defence, because it is against the peace.
In cases of friendly contests with weapons, {h) Vide ante, p. 785.

which though not of a deadly nature may («) R. v. Perkins, 4 C. & P. 537, Patte-

breed danger, there should be duo warning son, J. R. o. Hunt, 1 Cox, 177.

given that each party may start upon equal (j) Anon. 1 Lew. 17, Bayley, J. R. v,

terms. For if two were engaged to play at Lewis, 1 C. & K. 419. R. v. Coney, 8 Q.B.

cudgels and the one made a blow at the D. 534. Ante, p. 786.

CHAP. VI.] Of Defence of Person or Property. 887

present, the mere presence unexplained may, it seems, afford
some evidence for the consideration of the jury, although voluntarily
presence would not of itself be necessarily conclusive evidence of an
assault {k).

In the case of dangerous exhibitions and performances, the question
may arise as to how far consent can be given to acts involving danger
to the life or limb of the person consenting. This is settled as to males
under sixteen and females under eighteen, by the Dangerous Performances
Acts, 1879 and 1897, post, p. 910.

Consent to a surgical operation frees the operator from criminal
responsibility for assault, when freely given with knowledge of the purpose
of the operation and when the purpose is lawful and the operation is
performed with professional skill. And the trend of legal opinion is
in favour of the proposition that no criminal responsibility is incurred by
a surgeon who, with proper care and skill, and for the physical benefit of
a sick person, performs on him a surgical operation even without his
consent (l).

Defence of Person or Property.— The use of force is lawful for the
necessary defence of self or others or of property ; but the justification
is limited by the necessity of the occasion and the use of unnecessary force
is an assault (m).

Thus if one confines a friend who is mad, and binds him, &c., in such
a manner as is proper in such circmnstances ; or if a man forces a sword
from one who ofiers to kill another therewith ; or if a man gently lays his
hands upon another, and thereby stays him from inciting a dog against a
third person ; he cannot be indicted for assault or battery (n). So if A.
beats B. (without wounding him, or throwing at him a dangerous weapon),
who is wrongfully endeavouring, with violence, to dispossess him of his
lands, or of the goods, either of himself or of any other person, which
have been delivered to him to be kept, and will not desist upon A.'s
laying his hands gently upon him, and disturbing him. And if a man
beats, wounds, or maims one who is making an assault upon his own
person, or that of his wife, parent, child, or master ; or if a man fights
with, or beats, one who attempts to kill any stranger ; in these cases
also it seems that the party may justify the assault and battery (o), and
a wife may justify an assault in defence of her husband (p).

With respect to assaults by a master in defence of his servant. Lord

Mansfield said : ' I cannot say that a master interposing, when his servant

is assaulted, is not justifiable under the circumstances of the case ; as well

{k) R. V. Coney, 8 Q.B.D. 534. Indian Penal Code, and has been embodied

(l) By the Draft Code of 1880, el. 68, in the Ci-iminal Codes of Canada (Rev. Statt.

' Every one is protected from criminal Can. 1906, c. 146, s. 65) ; New Zealand

responsibility for performing with reason- (1893, No. 56, s. 69) ; Queensland (1899,

able care and skill any surgical operation No. 9, s. 282) ; Western Austraha (1901,

upon any person for his benefit : provided No. 14, s. 257) ; and Northern Nigeria,

that performing the operation was reason- (m) See R. v. DrisooU, C. & M. 214.

able, having regard to the patient's state at (n) 1 Hawk. c. 60, s. 23 ; Bac. Abr, tit.

the time and to all the circumstances of the ' Assault and Battery ' (C).

case.' The proposition contains no direct (o) 1 Hawk. c. 60, s. 23, and the numerous

reference to the consent or dissent of the authorities there cited. Bao. Abr. tit.

patient. It is accepted as the law by ' Assault and Battery ' (C).

Sir J. F. Stephen (Dig. Cr.L. (6th ed.), Art. (p) Leward v. Baseley, 1 Ld. Raym.

226). It corresponds to part of s. 92 of the 62.

888 Of Assault and Battery. [book ix.

as a servant interposing for his master ; it rests on the relation between
master and servant ' (</).

Son assault demesne is a good defence to an indictment for assault and
battery (r). If one man strikes another a blow, or does that which amounts
to an assault on him, that other has a right to defend himself, and to strike
a blow in his defence without waiting till he is struck (rr), but he has no
right to revenge himself ; and if when all danger is past he strikes a blow
not necessary for his defence, he commits an assault and battery (s). It
is not, however, every trifling assault that will justify a grievous and
immediate mayhem, such as cutting off a leg or hand, or biting off a joint
of a man's finger ; unless it happen accidentally, without any cruel or
malignant intention, or after the blood was heated in the scuffle, but
it must appear that the assault was in some degree proportionable to the
mayhem (<). If a party raise up a hand against another, within a distance
capable of the latter being struck, the other may strike in his own defence,
to prevent him, but he must not use a greater degree of force than
is necessary (m). For if the violence used be more than was necessary to
repel the assault, the party may be convicted of an assault {v).

It should be observed, with respect to an assault by a man on a party
endeavouring to dispossess him of his land, that where the injury is a
mere breach of a close, in contemplation of law, the defendant cannot
justify a battery without a request to depart ; but it is otherwise where
any actual violence is committed, as it is lawful in such case to oppose
force to force : therefore, if a person break down the gate, or come into
a close vi et armis, the owner need not request him to be gone, but may
lay hands on him immediately ; for it is but returning violence with
violence (w). If a person enters another's house with force and violence, the
owner of the house may justify turning him out (using no more force than
is necessary), without a previous request to depart : but if the person
enters quietly, the other party cannot justify turning him out without a

(q) Tiokel v. Read, Lofft. 215; and see (t) 1 East, P.O. 402.

1 Hawk. c. 60, s. 24. In one old case it was («) Anon. 2 Lew. 48, Parke, B.

said that a master cannot justify an assault {v) B. v. Mabel, 9 C. & P. 474, Parke, B.

in defence of his servant because he may R. v. Whalley, 7 C. & P. 245, Williams, J.

have an action ior loss of his services. (w) Green v. Goddard, 2 Salk. 641. In

Leward v. Baseley, 1 Ld. Raym. 62. 1 a case of this kind, however, it should seem

Salk. 407. Bull. (N. P.) 18. It is said that the violence must be considerable, and

that a servant cannot justify beating an- continuing, in order to justify the applica-

other in defence of his master's son, though tion of force by the owner, without some

he were commanded to do so by the master, previous request to depart ; at least, if the

because he is not a servant to the son, and force applied be more than would be

tha,t for a like reason a tenant may not beat justified under a nwUiter manus imposuit :

another in defence of his landlord. 1 Hawk. for in a case of assault and battery, where

c. 60, s. 24. the defendant pleaded son assault demesne,

(r) 1 Hawk. c. 62, s. 3. and the plaintiff replied that he was pos-

{rr) R. V. Carmen Deana, 73 J. P. 225 ; sessed of a certain close, and that the de-

25 T. L. B. 399, adopting the statement in fendant broke the gate and chased his

Archbold, Cr. PI. (23rd ed.), 837. horses in the close, and that he, for the

(s) R. V. Driscoll, C. & M. 412, Cole- defending his possession, moUiter insultum

ridge, J. Coke (Co. Litt. 162 a) cites from fecit upon the defendant, the replication

Bracton, vim vi repellere licet, modo fiat was adjudged to be bad ; and that it should

moderamine inculpatce iutelce, non ad sumen- have been molliter manus imposuit, as the

dam vindictam, sed ad propulsandam in- plaintiff could not justify an assault in

juriam. Bull. (N. P.) 18. As to when defence of his possession. Leward v.

mere words will reduce a murder to man- Baseley, 1 Ld. Raym. 62. Bull. (N. P.),

slaughter, see ante, p. 693, 19.

CHAP. V.I.] Procedure. 889

previous request [x). For ' there is a manifest distinction between
endeavouring to turn a man out of a house or close into which he has
previously entered quietly, and resisting a forcible attempt to enter : in
the first case a request is necessary ; in the latter not ' (y). So, if one
come forcibly and take away another's goods, the owner may oppose
him at once, for there is no time to make a request (z). And the owner of
goods (or his servant, acting by his command) which are wrongfully in
the possession of another, may, after requesting him to deliver them up,
justify an assault in order to repossess himself of them (a). It seems also
that a person who has a right of way or other easement may justify using
so much force as may be necessary to enable him to exercise that right; or
to prevent another from interrupting it (&). But, in general, unless there
be violence in the trespass, a party should not, either in defence of his
person, or his real or personal property, begin by striking the trespasser,
but should request him to depart or desist ; and, if that is refused,
should gently lay his hands upon him in the first instance, and not proceed
with greater force than is made necessary by resistance (c). Thus, where
a churchwarden justified taking off the hat of a person who wore it in
church, at the time of divine service, the plea stated that he first requested
the plaintiff to be uncovered, and that the plaintiff refused {d). And in
all caseswhere the force used is justified, under the particular circumstances
of the case, it must appear that it was not greater than was reasonably
necessary to accomplish the lawful purpose intended to be effected (e).
Therefore, though an offer to strike the defendant, first made by the
prosecutor, is a sufficient assault by him to justify the defendant in
striking, without waiting till the prosecutor had actually struck him first ;
yet, even a prior assault will not justify a battery, if such battery be
extreme ; and it will be matter of evidence, whether the retaliation of the
defendant were excessive, and out of all proportion to the necessity or
provocation received (/).

Procedure.— Except in the cases falling within 24 & 25 Vict. c. 100,
ss. 44, 45 {fost, pp. 897, 898), the person assaulted may take both civil
and criminal proceedings against his assailant ; for the penalty imposed
in the criminal prosecution, and the damages to the party in the civil
action, are perfectly distinct in their nature {g), but the Court of Queen's
Bench refused to sentence a party convicted of an assault while an
action was pending for the same assault Qi).

There is no objection to including assaults on two persons in the
same indictment (if they were committed as part of the same
transaction) (i), nor to inserting several counts in the same indictment

(a;) Tullay v. Reed, 1 C. & P. 6, Park, J. (d) Hawe v. Planner, 1 Wms. Saund. 13.

And see R. o. Meade, 1 Lew. 184. R. v. (e) 1 East, P.O. 406.

Wild, 2 Lew. 214. (/) Bull. (N. P.) 18. 1 East, P.O. 406.

(y) Polkinghorn v. Wright, 8 Q.B. 197. See ante, pp. 692 e( seq.

\z) Green v. Goddard, 2 Salk. 641. (g) Jones v. Qay, 1 B. & P. 191. 1 Selw.

(a) Blades u. Higgs, 10 C. B. (N. S.) 713. (N. P.) tit. 'Assault and Battery,' 27,

(6) Bird v. Jones, 7 Q.B. 742, Patteson, note (2). 1 Hawk. o. 62, s. 4. Bao. Ab.

J., 2 Rolle Abr. ' Trespass,' p. 547 (E.), pi. 1 tit. ' Assault and Battery ' (D.).

& 2, which rest on Y.B. 3 Hen. IV. f. 9, {h) R. v. Mahon, 4 A. & E. 575, and see

and 11 Hen. VI. f. 23. Ex parte , Gent., ibid., note, and R. v.

N. P.), tit. ' Assault and Battery,' 39, 40. (i) The reason for the rule is that assault

890

Of Assault an^ Battery.

[BOOK IX.

for distinct assaults, and it has long been the constant practice to
receive evidence of several assaults upon the same indictment (j) ; nor is
there any objection to an indictment charging an assault by two
persons jointly. On such indictment either or both may be convicted
according to the evidence {h). ' Cannot the King call a man to account
for a breach of the peace, because he broke two heads instead of one V {I).

Pleas. — Whatever is a legal justification or excuse for an assault or
imprisonment, such as son assault demesne, the arrest of a felon, &c., may,
upon an indictment, be given in evidence under the general issue (m).

As every battery includes an assault (w), it follows, that on an indict-
ment of assault and battery, in which the assault is ill laid, if the defendant
be found guilty of the battery it is sufficient (o).

Wherever a count for a misdemeanor contains a charge of assault
accompanied with circumstances of greater or less aggravation, the jury
may find the defendant guilty of a common assault, and acquit him of the
circimistances of aggravation (p).

Punishment.— By the Offences against the Person Act, 1861 (24 & 25
Vict. c. 100), s. 47 (q), ' Whosoever shall be convicted upon an indictment
of any assault occasioning actual bodily harm (r) shall be liable, at the
discretion of the Court, to be kept in penal servitude . . . (s), and ivhosoever
shall be convicted upon an indictment for a common assault shall he liable,
at the discretion of the Go%irt, to he imprisoned for any term not exceeding

is a misdemeanor only ; and that the prose,
cutor is not, as in felony, required to
elect on which count he will proceed. But
if the joinder embarrass the defence the
Court can quash the indictment or sever
the trial of the counts.

(?) 1 Chit. Ci. L. 254. R. v. Davies, 5
Cox, 328.

(k) In two cases included in the sixth
edition of this work. Vol. iii. pp. 317,
318, rulings are reported which seem to
be incorrect and misleading. In the first,
R. V. Troughton, 1 Cox, 197, on an indict-
ment against two defendants for com-
mitting an assault, the prosecution proved
an assault committed by one, with which
the other had nothing to do, and it was
urged that the latter was entitled to be
acquitted, as an assault answering the de-
cription of that in the indictment had been
proved, and, as there was only one count,
more than one assault could not be proved ;
and it was held that the latter must be
acquitted, on the ground that the assault
proved was not the assault charged. It
was then objected, for the other defendant,
that as the count was for a. joint assault,
this defendant could not bo convicted of an
assault by him alone, and that he only came
prepared to answer that joint assault ; and
it was held by Bullock, Comrar., after
consulting the Recorder of London, that
this defendant must be acquitted. 'The
second ruling is clearly wrong, and the two
rulings are inconsistent.' C. S. G. In R.
V. Gordon, 1 Cox, 259, on an indictment
Qontaining oi;ie count for ain. assault against

two persons, an assault by one was proved,
in which the other was not at all implicated,
it was held by the same judge that one
assault to which the indictment was applic-
able having been proved, evidence of other
assaults could not be gone into. Mr.
Greaves on this case says : ' This ruling is
directly contrary to the second ruling in
the last case. The point is not a question
of law : it is merely a question for the dis-
cretion of the Court, and as any number of
assaults may be tried under one indictment
containing a count for each, there seems no
good reason for confining the evidence on
one count to the first assault that may
happen to be proved. Stante v. Pricket,
1 Camp. 437, was cited in support of the
objection.'

(I) Per Curiam in R. v. Benfield, 2 Burr.
984, over-ruling the contrary decision in
R. V. Clendon, 2 Ld. Raym. 1572 ; 2 Str.
870.

(m) 1 Hawk. c. 62, s. 3. 1 East, P.C.
406, 428. Bac. Abr. tit. 'Assault and
Battery.'

(re) Ante, p. 881.

(o) 1 Hawk. c. 62, s. 1.

(p) E. V. Oliver, Bell, 287. R. v.
Yeadon, L. & C. 81. R. v. Taylor, L. R.
1 C. C. R. 194.

(q) Taken from 14 & 15 Vict. i;. 100, s. 29.

(r) Vide ante, -p. 853.

(s) For not less than three nor more than
five years, or to imprisonment with or
without hard labour for not over two
years, 54 & 55 Vict. c. 69, s. 1, ante, pp. 211,
212, 'ri- ■ '

CHAP. VI.] Of Certain Aggravated Assaults. 891

one year, with or without hard labour ' (t). The Court may in addition to
or as an alternative to the above punishments impose a fine and (or) put
the offender under recognisances, with or without sureties, to keep the
peace, and be of good behaviour (u), or release him on probation (v).
As to the liabilitv of the offenders to pay costs, see Book XII.
Chapter V. tit. ' Costs,' post, Vol. ii. p. 2039.

Sect. H.— Of Certain Aggravated Assaults.

Most crimes classed as offences against the person involving assault
or battery have been dealt with under their more special titles. But there
remain certain forms of assault which are punishable more severely than
common assault by reason of some circumstance of aggravation, either
from the place in which, or the person upon whom, the assault is com-
mitted, or else from the great criminality of the purpose or object intended
to be effected, or the amount of personal injury inflicted.

In Churches and Churchyards. — As to assaults in churches and
churchyards or on ministers of rehgion, vide ante, pp. 401-408.

In Royal Palaces. — By the ancient law before the Conquest, fighting
in the King's falaces, or before the King's judges, was punished with
death (w). 33 Hen. VIII. c. 12, provided severe punishment for all
malicious strikings by which blood was shed within any of the King's
palaces or houses, or any other house, at such time as the royal person
happened to be there abiding ; but these provisions were repealed in 1828
(9 Geo. IV. 0. 31, s. 1).

In Courts of Justice. — Striking in the King's superior courts of
justice in Westminster Hall, or in any other place, while the Courts were
sitting, whether the Court of Chancery, Exchequer, King's Bench, or
Common Pleas, or before justices of assize, or Oyer and Terminer, was
considered to be punishable even more severely than striking in the King's
palace ; perhaps for the reason that, those Courts being anciently held
in the King's palace, and before the King himself, striking there included
not merely contempt against the King's palace but something more,
namely, the disturbance of public justice (a;). So that, though striking
in the King's palace was not punished with the loss of the offender's hand
unless some blood were drawn, nor even then with the loss of lands and
goods, the drawing of a weapon onlyupon a judge or justice in such Coiirts,
though the party struck not, was regarded as a great ' misprision,'
punishable by the loss of the right hand, perpetual imprisonment, and
forfeiture of the party's lands during Hfe, and of his goods and
chattels (y). And a similar punishment might be inflicted on a man who,
in the same Courts, and within their view, struck a juror or any other
person, either with a weapon, or with hand, shoulder, elbow, or foot ; but
he was not deemed to be Kable to such punishment if he made an assault

(t) The words in italics were new in 1861. (v) Ante, t[>. 227.

The usual common-law punishment for (w) 4 Bl. Com. 124.

assault was fine, imprisonment without (x) 3 Co. Inst. 140. 4 Bl. Com. 125.

hard labour and (or) the finding of sureties (y) Staundf. 38. 3 Co. Inst. 140, 141.

to keep the peace. See 4 Bl. Com. 217. 1 Hawk. c. 21, s. 3. 4 Bl. Com. 125. 1

1 East, P.C. 406, 428. East, P.C. 408. See K. v. Stobbs, 3 T. R.

(m) 24 & 25 Vict. u. 100, s. 71, ante, p. 218. 737, 738.

892 Of Assault and Battery. [book ix.

only, and did not strike (2). And a man guilty of this offence could not
excuse himself by shewing that the person so struck by him gave the first
offence {a).

The three first counts of an information set forth a special commission
for the trial of 0. and others for high treason ; and that, pending the
sessions, after the acquittal of 0., and before any order or direction had
been made by the Court for his discharge, the defendants, in open Court,
&o., made a great riot, and riotously attempted to rescue him out of the
custody of the sheriff, to whose custody he had been assigned by the
justices and commissioners ; and, the better to effect such rescue and
escape, did, at the said sessions, in open Court, and in the presence of the
said justices and commissioners, riotously, &c., make an assault on one
J. R., heat, bruise, wound, and ill-treat the said J. R., and thereby impede
and obstruct the said justices, &c. There were two other counts in the
information ; the one for riotously interrupting and obstructing the
justices in the holding of the session, and the other for a common riot (6).
Two of the defendants having been found guilty generally, considerable
doubt was intimated by Lord Kenyon whether the Court were not bound
to pass the judgment of amputation, &c., for the offence, as laid in the
three first counts ; and the matter stood over for consideration. But
before the defendants were again brought up to receive judgment, the
Attorney-General said that he had received the royal command and
warrant under the sign manual, whereby he was authorised to enter a
nolh frosequi as to those parts of the information on which any doubt had
arisen, or might arise, whether the judgment thereon were discretionary
in the Court, and pray judgment only on such charges as left the judg-
ment in their discretion ; and, accordingly, a nolle prosequi was entered on
the three first counts ; and on the others the Court gave judgment
against the defendants, of fine, imprisonment, and sureties (c).

A person who rescues a prisoner from any of the Courts which have
been mentioned, without striking a blow, is said to be punishable by
perpetual imprisonment, and forfeiture of goods, and of the profits of
lands during, life ; for this offence is, in its nature, similar to the other ;
but as it differs in this, that no blow is actually given, the amputation of
the hand is excused (d). And for the like reason, an affray or riot near
the said Courts, but out of their actual view, is said to be punishable by fine
and imprisonment during pleasure, but not with the loss of the hand (e).

There has not since 1799 been any prosecution on indictment based on

(z) Staundf. 38. 3 Co. Inst. 140, 141. Chief Justice of C. B., at the assizes at

1 Hawk. 0. 21, 3. 3. 4 Bl. Com. 125. 1 Salisbury, in the summer of 1631, was
East, P.C. 410. assaulted by a prisoner condemned there -

(a) 1 Hawk. c. 12, s. 4. for felony, who, after his condemnation,

(6) See the precedent of this information threw a brickbat at the said judge, and

2 Chit. Cr. L. 208, et seq. which narrowly missed ; and for this an
(c) R. V. Lord Thanet [1799], K. B. 1 indictment was immediately drawn by

East, P. C. 408, 409, 410. In R. v. Davis, Noy against the prisoner, and his right arm

2 Dy. 188 a, 188 b; 73 E. R. 416, and the cut off and fixed to the gibbet upon which

notes thereto, are various instances of the he was himself immediately hanged in the

judgment having been executed to the presence of the Court.'

fullest extent. One of them is remarkable (d) 1 Hawk. c. 21, s. 5. 4 Bl. Som. 125.

for the speedy justice which appears to (e) 1 Hawk. c. 21, s. 6. 4 Bl. Com. 125.

have been administered. ' Richardson, Vide ante, p. 427.

CHAP. VI.] Of CeHain Aggravated Assaults. 893

this antiquated view of the law (/). Assaults in Court are dealt with as
contempts of the Court (awfe,pp. 537 et seq.), or by indictment, and in the
latter case the punishment meted out is that warranted by the Act of 1861.

It is said that, in order to warrant the higher judgment, the offence
must be charged to have been committed in the presence of the King, or
of the justices (g). And it seems also that in order to warrant such judg-
ment, the indictment ought expressly to charge a stroke ; though it
does not appear whether any technical word would be necessary to be
used for that purpose (h).

Superior Courts. — -Though an assault in any of the King's inferior
Courts of record did not subject the offender to lose his hand (i) ; yet,
upon an indictment for such an assault, the circumstances under which
it was committed would, doubtless, be considered as a matter of aggrava-
tion. And any affray or contemptuous behaviour in inferior Courts of
record is summarily punishable as contempt of Court, by the judges there
sitting {j), or where such offences are committed in a Court of summary
jurisdiction by proceedings in the High Court (Jc).

As to assaults punishable as piracy see 11 Will. III. c. 7. s. 8, ante,
p. 259; 7 Will. IV. & 1 Vict. c. 88, s. 2, ante, p. 266.

Assault with intent to Commit Felony.— It is a misdemeanor
punishable by imprisonment, with or without hard labour, for not more
than two years, to assault any person with intent to commit any felony (l).
Assault with intent to commit murder (m), or robbery (n), are specially
punishable, as are demands of property by menaces or force, with intent
to steal (o). As to assaults with intent to ravish or to commit an
unnatural offence, see fost, pp. 942, 975.

Assaults on Officers of the Law.— By 24 & 25 Vict. c. 100, s. 37 {p),
'Whosoever shall assault and strike or wound any magistrate, ofScer,
or other person whatsoever lawfully authorised, in or on account of the
exercise of his duty in or concerning the preservation of any vessel in
distress, or of any vessel, goods, or effects wrecked, stranded, or cast on
shore, or lying under water, shall be guilty of a misdemeanor, and being
convicted thereof shall be liable ... to be kept in penal servitude for any
term not exceeding seven years ' . . . (q).

By sect. 38, ' Whosoever shall assault any person with intent to commit
felony (r), or shall assault, resist, or wilfully obstruct any peace officer in
the due execution of his duty (s), or any person acting in aid of such officer,

{/) The punishment of mutilation ap- (o) Vide post. Vol. ii. pp. 1127, 1156.

pears to have rested on the repealed portion (p) Taken from 9 Geo. IV. c. 31, s. 24

of 33 Hen. VIII. e. 12. (E), and 10 Geo. IV. c. 34, s. 30 (I.).

{g) 1 East, P.O. 410. 1 Hawk. o. 21, s. 3. (?) For other punishments see 54 & 55

(h) 1 East, P.O. 408, citing 1 Sid. 211. Vict. c. 69, s. 1, ante, pp. 211, 212.

(i) 3 Co. Inst. 141. 1 Hawk. o. 21, «. 10. The words omitted were repealed in 1892

(j) 4 Bl. Com. 126. 1 Hawk. o. 21, s. 10. (S. L. R.).

{k) It is more usual to deal with the (r) Vide supra.

offence under the appropriate penal enact- (s) Upon an indictment, under this sec-

ment. tion, for assaulting pohce officers in the

{I) 24 & 25 Vict. e. 100, a. 38, infra, execution of their duty, it was objected that

i.e. any felony, whether at common law or there was no offence, as the police were in

by statute, whenever passed. plain clothes, and the defendants did not

(m) 24 & 25 Vict. c. 100, ss. 11-15, a»«e, know they were constables; but it was

pp. 840, 841. held that the the offence was not assaulting

{») 24 & 25 Vict. c. 96, s. 42, post, p. 1127. them, knowing them to be in the execution

894 Of Assault and Battery. [book ix.

or shall assault any person with intent to resist or prevent the lawful
apprehension or detainer of himself or of any other person for any offence,
shall be guilty of a misdemeanor, and being convicted thereof shall be
liable, at the discretion of the Court, to be imprisoned for any term not
exceeding two years, with or without hard labour ' (<).

As to assaults occurring in the ob,struction of officers executing
civil process or in effecting a rescue, vide ante, pp. 551, 567.

By the Poor Law Amendment Act, 1850 (13 & 14 Vict. c. 101), s. 9,
' Where any person shall be charged with and convicted of any assault
upon any officer of a workhouse or relieving officer in the due execution
of his duty, or upon any person acting in aid of such officer, the Court
may sentence the offender to the same punishment as is provided by
law for an assault upon a peace officer (u), or revenue officer in the due
execution of his duty ' (v).

By the Poor Law Amendment Act, 1851 (14 & 15 Vict. c. 105), s. 18,
the preceding clause was extended to ' an assault upon any person
included under the word " officer " in the Poor Law Amendment Act, 1834
(5 & 6 Will. IV. c. 76), or upon any other person acting in his aid'; and by
sect. 109 of the Act of 1834, the term ' officer ' includes ' any clergyman,
schoolmaster, person duly licensed to practise as a medical man, vestry
clerk, treasurer, collector, assistant overseer, governor, master or mistress
of a workhouse, or any other person who shall be employed in any parish
or union in carrying this Act or the laws for the relief of the poor into
execution, and whether performing one or more of the above-mentioned
functions.'

By the Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), s. 12,
where any person is convicted of any assault on any constable when in the
execution of his duty, such person shall be guilty of an offence against this
Act, and shall, in the discretion of the Court, be liable to either pay a
penalty not exceeding twenty pounds, and in default of pajmaent to be
imprisoned with or without hard labour, for a term not exceeding six
months, or to be imprisoned for any term not exceeding six, or in case such
person has been convicted of a similar assault within two years, nine
months with or without hard labour.

By the Prevention of Crimes Amendment Act, 1885 (48 & 49 Vict. c. 75)
s. 2, ' The provisions of 34 & 35 Vict. c. 112, s. 12, shall apply to all
cases of resisting or wilfully obstructing (w) any constable or peace
officer when in the execution of his duty. Provided that in cases to which
the said Act is extended by this Act, the person convicted shaU not be
liable to a greater penalty than five pounds, or in default of payment
to be imprisoned, with or without hard labour, for a greater term than
two months.'

of their duty, but assaulting them being former enactment, but are omitted in this,

in the execution of their duty. R. v. because assaults on them are provided for

Forbes, 10 Cox, 362 (Russell Gurney, by 44 & 45 Vict. o. 12, s. 12, areie, p. 374 ;

Recorder), approved in R. v. Maxwell, 73 63 & 64 Vict. c. 21, s. 11.

J. P. 174. (u) Under 24 & 26 Vict. o. 96, s. 38,

(() Taken from 9 Geo. IV. c. 31, s. 25 (E) supra.

andlOGeo. IV. 0.34, s. 31 (I.). Theseotion (v) As to the costs of prosecution, see

extends the former enactment to resisting post, Vol. ii. p. 2039.

and wilfully obstructing peace officers. (to) See Bastable v. Little [1907], 1 K.B.

Revenue officers were included in the 69.

CHAP. VI.] Of Certain Aggravated Assaults. 895

By 14 & 15 Vict. c. 19, s. 11 (w), any person whatsoever may apprehend
any person who shall be found committing any indictable ofience in the
night, and may convey or deliver him to any constable or poHce officer
in order to his being conveyed, as soon as reasonably may be, before a
justice of the peace, to be dealt with according to law ; and by sect. 12,
' If any person liable to be apprehended under the provisions of this
Act, shall assault or offer any violence to any person by law authorised
to apprehend or detain him, or to any person acting in his aid or assistance,
every such offender shall be guilty of a misdemeanor, and being convicted
thereof shall be liable to be imprisoned, with or without hard labour,
for any term not exceeding three years.'

24 & 25 Vict. c. 100, sect. 38 is not limited to assaults on a peace
officer, but extends —

(i) To persons acting in aid of such officer (in the due execution of his
duty) ; and

(ii) To any person who is assaulted with intent to resist the lawful
apprehension or detainer of the assailant or another for any offence
(whether indictable or not).

Head (i) applies whether the duty being executed relates to civil or
criminal matters ; but head (ii) is limited to the case of lawful arrests for
a criminal matter.

The expression 'in the execution of his duty,' includes all cases in which
the constable at common law or by statute is lawfully seeking to make an
arrest without warrant or with a warrant regular on the face of it, or to
prevent the commission of crimes or breaches of the public peace (x),
or to execute a search warrant, lawfully issued (y), or is lawfully detain-
ing his prisoner or conveying him before a judicial officer (z). or is iising
reasonable precautions to prevent escape (a). He appears also to be in
the execution of his duty in searching a person who is conducting himself
with violence, to see if he has weapons about him (b), or in searching a
person arrested on suspicion of larceny or unlawful possession.

Head (ii) applies to resistance to arrest by a private person authorised
by common law or statute to effect the arrest.

The words ' peace officer in the due execution of his duty ' are wide
enough to include the sheriff or his officers, when concerned in executing
civil process (c), and the bailiffs of County Courts (d). The words are not
restricted to arrests for crime and are wide enough to cover acts relating
to civil proceedings, e.g. the service of summonses relating to civil matters

{w) Ante, p. 729. v. Court, 4 B. & C. 596. R. v. Taylor, 59

(a;) Vide ante, pp, 721 et seq. J. P. 393. R. o. Lockley, 4 F. & F. 155.

{y) See Jones v. German [1896], 2 Q.B. (6) See Leigh v. Cole, 6 Cox, 329,

418. Crozier v. Ctindey, 6 B. & C. 232. Williams, J. Dillon v. O'Brien, 16 Cox,

Parton t;. Williams, 3 B. & Aid. 330. Smith 245 (Ir.). It is established practice to search

V. Wiltshire, 2 B. & B. 619, and Theobald prisoners at police stations for weapons,

V. Crichmore, 1 B. & Aid. 227. 24 Geo. II. poison, or for anything which may be

i;. 44. evidence with respect to a criminal charge.

(z) He is bound to take his prisoner be- See Met. Pol. Guide (ed. 1906), p. 556.

fore a magistrate as soon as he reasonably Criminal Appeal Rules, 1908, r. 31 (6).
can, and in the event of unreasonable delay (c) Resistance to execution of writs by

{i.e. for three days) becomes a trespasser. the sheriff is a misdemeanor, 50 & 51 Vict.

Wright V. Court, 4 B. & C. 596. c. 55, s. 8 (2), ante, p. 550.

(o) Handcuffing is legal where the (d) For summary remedy see 51 & 52

prisoner has tried to escape, or where it is Vict. c. 43, s. 48; Lewis v. Owen [1894],

necessary to prevent him doing so. Wright 1 Q.B. 102.

o96 Of Assault and Battery. [book ix.

within the jurisdiction of justices, and to revenue proceedings, e.g.
attending to prevent the use of violence to a tax collector (e).

Sect. III. — Summary Proceedings por Assault.

In the case of common or minor assaults, instead of proceeding by
indictment, it is usual to resort to the alternative summary remedy
provided by the following enactments.

By 24 & 25 Vict. c. 100, s. 42, ' Where any person shall unlawfully
assault or beat any other person, two justices of the peace, upon complaint
hy or on behalf of the party aggrieved (/), may hear and determine such
offence, and the offender shall, upon conviction thereof before them, at
the discretion of the justices, either be committed to the common gaol or
house of correction, there to be imprisoned with or without hard labour,
for any term not exceeding two months (g) or else shall forfeit and pay
such fine as shall appear to them to be meet, not exceeding, together with
costs (if ordered), the sum of five pounds ; and if such fine as shall be so
awarded, together with the costs (if ordered), shall not be paid, either
immediately after the conviction or within such period as the said justices
shall at the time of the conviction appoint, they may commit the offender
to the common gaol or house of correction, there to be imprisoned, with
or without hard labour, for any term not exceeding two months, unless
such fine and costs be sooner paid ■" (h).

By sect. 43, ' When any person shall be charged before two justices of
the peace with an assault or battery upon any male child whose age shall
not in the opinion of such justices exceed fourteen years, or upon any
female, either upon the complaint of the party aggrieved or otherwise,
the said justices, if the assault or battery is of such an aggravated nature
that it cannot in their opinion be sufficiently punished under the provisions

(e) E. V. Clark, 3 A. & E. 287. Much permits the complaint to be made by any

of this case turns on the authority of the one on its behalf, and so it might under

collector under sections now repealed of 14 & 15 Vict. c. 92, s. 2 (I). Where a com-

the La,nd Tax Act, 1797 (37 Geo. III. c. 5). plaint has been made the justices may

(/ ) A prosecution under the section can- proceed, though the parties have made a

not be initiated by a police officer. Niohol- compromise. R. v. Wiltshire, 8 L. T. 242.

son V. Booth, 57 L. J. M. C. 43. Cf. R. v. But see 25 & 26 Vict. c. 50, a. 9, which was

Wicklow JJ., 30 L. R. Ir. 633. But where passed for the very purpose of enabling

the person assaulted, through age and justices in Ireland to proceed, even where

infirmity, is in such a feeble state of health the party assaulted declined to complain,

and so under the control of the assailant as By 9 Geo. IV. c. 31, s. 27, the justices had

to be incapable of instituting proceedings only power to fine in the first instance ; by

under this section, a third person may lay 14 & 15 Vict. c. 92, s. .2, they may either

an information even though not in fact fine or commit for two months ; and under

authorised by the party aggrieved. Pick- this clause they may either fine or commit,

ering v. Willoughby [1907], 2 K.B. 296. This clause also gives the justices power to

(g) Cumulative imprisonment for a commit to hard labour either in the first

period not exceeding in all six months may instance, or on default of payment of a

be imposed for several assaults committed fine. All summary proceedings under this

onthe same occasion. 42 & 43 Vict. c. 49, section are taken under the Summary

a. 18. Jurisdiction Act, 1879, in England, and in

(h) Framed from 9 Geo. IV. c. 31, s. 27. Ireland under the Petty Sessions (Ireland)

Under that section the complaint could Act, 1851 (14 & 15 Vict. u. 93). The

only be made by the party aggrieved. R. offences punishable under thia and the next

V. Deny, 2 L. M. & P. 230. Thia aection, section are not offences aa to which the

in order to enable parenta and others to accuaed can elect to be tried on indictment,

complain on the part of an injured child. See 42 & 43 Vict. o. 49, b. 17, ante, p. 17.

CHAP, vi.i Summary Proceedings for Assault. 897

hereinbefore contained as to common assaults and batteries, may proceed
to hear and determine the same in a summary way, and, if the same be
proved, may convict the person accused ; and every such offender shall
be liable to be imprisoned in the common gaol or house of correction, with
or without hard labour, for any period not exceeding six months, or to
pay a fine not exceeding (together with costs) the sum of twenty
poxmds, and in default of payment to be imprisoned in the common
gaol or house of correction for any period not exceeding six months,
unless such fine and costs be sooner paid, and, if the justices shall so
think fit, in any of the said cases, shall be bound to keep the peace and
be of good behaviour for any period not exceeding six months from the
expiration of such sentence ' {i).

It would seem that the words ' aggravated nature ' mean aggravated
by circumstances of violence or the like, and do not apply to indecent
assaults which are indictable and not punishable on summary conviction.
A person charged under sect. 43 may be convicted under sect. 42 {j).

By sect. 44, ' If the justices upon the hearing of any such case of
assault or battery upon the merits where the complaint was preferred
by or on the behalf of the party aggrieved, under either of the last two
preceding sections, shall deem the offence not to be proved, or shall find the
assault or battery to have been justified, or so trifling as not to merit any
punishment, and shall accordingly dismiss the complaint, and shall
forthwith {h) make out a certificate (J) under their hands stating the fact
of such dismissal, and shall deliver such certificate to the party against
whom the complaint was preferred ' (m).

(i) Taken from 16 & 17 Vict. o. 30, s. 1. summons having been issued, is sufficient

The provisions of 8 Edw. VII. o. 67, post, evidence of those facts, without producing

pp. 918 et seq., as to presumption of age, the complaint or summons. R. ii. Westley,

evidence, &c., apply to proceedings under 11 Cox, 139.
ss. 42 & 43. (m) This section is limited to the case

(j) See Stone, Justices' Manual (41st ed.), where a complaint is made by or on behalf

pp. 141-145. of the party aggrieved. 9 Geo. IV. c. 31,

(k) In R. V. Robinson, 12 A. & E. 672 a. 27, only apphed to a case where the com-

(deoided on the similar enactment, 9 Geo. plaint was made by the party aggrieved,

IV. c. 31, s. 27), it was held that the oertifi- and unless this clause had been limited as it

cate must be given before the justices is, any person who had committed an aggra-

separated ; but this was doubted in vated assault might have got some friend

Thompson v. Gibson, 8 M. & W. 281. The to make a complaint and get the case heard

act of granting the certificate is not judicial by the justices, on insufficient evidence, and

or discretionary, but ministerial only, and might, by virtue of ss. 44 and 45, have de-

therefore ' forthwith ' does not mean forth- prived the party aggrieved of any remedy

with upon the dismissal of the complaint, by action or indictment. Under 9 Geo.

but forthwith upon the demand of it by the IV. c. 31, s. 27, where a party aggrieved

person entitled to it. Costar v. Hethering- made a complaint, and obtained a summons

ton, 1 E. & E. 802. Hancock v. Somes, 1 E. and served it on the defendant, but before

& E. 795. the day for hearing, gave notice, both to the

[1) The certificate must state on which defendant not to attend, and to the magia-

of the three grounds the complaint was dis- strates' clerk that he should not attend, but

missed, Skuse v. Davis, 10 A. & E. 635 ; the defendant attended, and claimed to

and must be specially pleaded in an action. have the information dismissed, and a

Harding v. King, 6 C. & P. 427. The pro- certificate of dismissal granted, notwith-

duction of the certificate is sufficient evi- standing the prosecutor's absence, it was

dence of the dismissal by the justices with- held that the justices were warranted in

out proof of their signature or official granting such certificate, and that it was a

character, 8 & 9 Vict. c. 113, s. 1 ; and if bar to an action of the assault. TunmcUfEe

the defendant appeared before the justices, v. Tedd, 5 C. B. 553. Vaughton i'. Brad-

the recital in the certificate of the fact of a shaw, 9 C. B. (N. S.) 103. As to s. 44 these

complaint having been made, and of a cases are no authority ; for in order to

VOL. I. ^ ^^

898

Of Assault and Battery.

BOOK IX.

By sect. 45, ' If any person, against whom any such complaint as m
either of the last three preceding sections mentioned shall have been
preferred by or on the behalf of the party aggrieved, shall have obtained
such certificate, or, having been convicted (n), shall have paid the whole
amount adjudged to be paid, or shall have suffered the imprisonment or
imprisonment with hard labour awarded, in every such case he shall be
released from all further or other proceedings, civil or criminal, for the
same cause ' (o).

By sect. 46, ' Provided, that in case the justices shall find (p) the assault
or battery complained of to have been accompanied by any attempt to
commit felony, or shall be of opinion that the same is, from any other
circumstance, a fit subject for a prosecution by indictment, they shall
abstain from any adjudication thereupon, and shall deal with the case in
all respects in the same manner as if they had no authority finally to hear
and determine the same : Provided also, that nothing herein contained
shall authorise any justices to hear and determine any case of assault or
battery in which any question shall arise as to the title (q) to any lands,

obtain a certificate under it the case must
be heard ' upon the merits ' ; that is, the
decision of the justices must be after having
heard the evidence. 14 & 15 Vict. c. 93,
a. 21 (I), required the justices to state in
the certificate that the dismissal was on the
merits, or that the assault was of a trifling
or justifiable nature.

(n) Hartley v. Hindmarsh, L. R. 1 C. P.
353 ; 35 L. J. M. C. 255.

(o) Taken from 9 Geo. IV. c. 31, s. 28
(E) ; and see 14 & 15 Vict. c. 93, s. 21 (I).
See the note to the last section. Several
decisions occurred under the former enact-
ment, whilst 1 Vict. c. 85, s. 11 (which
authorised a conviction of an assault on an
indictment for felony), was in force, as to
the cases in which a plea of autrefois acquit
and convict might be sustained, and these
will be found, together with remarks upon
them, in Greaves' Grim. Acts, p. 71 {2nd
ed.) ; but as that enactment was repealed
by 14 & 15 Vict. ^. 100, s. 10, there can-
not now be a conviction of a common
assault upon an indictment for felony (as
to indecent assault, see -post, p. 955) ; and
it seems clear that autrefois acquit or con-
vict by the common law cannot be pleaded
in any case, unless the prisoner might be
convicted on the former indictment, either
of the whole or at least of a part of the
criminal charge contained in it. See R. v.
Walker, 2 M. & Rob. 446. See post. Vol. ii.
p. 1982. In R. V. Elrington, 1 B. & S. 688 ;
31 L. J. M. C. 14 ; 9 Cox, 86, the first count
was for assaulting and doing grievous
bodily harm to the prosecutor ; the second
for assaulting, and doing actual bodily
harm to him ; and the last for a common
assault ; and it was held that pleas of a
dismissal of a complaint for the same assault
under 9 Geo. IV. o. 31, s. 27, were a bar to
the indictment, on the ground that the two
first counts only charged the same assault
with certain aggravations, and the last only

charged the same assault. See R. v.
Clare JJ. [1905], 2 Ir. Rep. 510.

It has been held that the words ' same
cause ' mean the same assault or same
offence, and that the protection given by
24 & 25 Vict. c. 100, s. 45, is not limited to
proceedings for the same cause of action.
Therefore a person who has been convicted
of a common assault on a married woman,
and who has paid the whole amount ad-
judged to be paid, may rely on the protec-
tion given by this section as a bar to an
action against him by the husband, for the
loss he, as such husband, has sustained by
the assault on his wife. Masper v. Brown,
1 C. P. D. 97 ; 45 L. J. C. P. 203. Where
a servant in the course of his employment
commits an assault his release under the
section does not exonerate his master.
Dyer v. Munday [1895], 1 Q.B. 742.

(p) Where the defendant had been con-
victed of a common assault, though it was
alleged that the evidence shewed a felo-
nious assault, and a certiorari was moved for
on the ground that tlie justices had no
jurisdiction, tlie Court of Queen's Bench
held that the justices had found that the
assault was not ' accompanied by any at-
tempt to commit felony,' which they had
jurisdiction to determine. Lord Tenterden
relying especially on the words ' in case the
justices shall find the assault or battery to
have been accompanied by any attempt to
commit felony ' in 9 Geo. IV. c. 31, s. 29.
Anon. 1 B. & Ad. 382. S. C. as R. v. Virgi],

I Lew. 16. See In re Thompson, 6 H. & N.
193, where the information was for unlaw-
fully assaulting and abusing a woman. Ex-
parte Thompson, 3 L. T. (N. S.) 294 ; Wil-
kinson V. Button, 3 B. & S. 821 ; and R. v.
French, 20 Cox, 200.

(?) See Latham v. Spalding, 2 L. M. &
P. 378. R. V. Pearson, 39 L. J. M. C. 76 :

II Cox, 493.

CHAP. VI.] Summary Proceedings for Assault. 899

tenements, or hereditaments, or any interest therein or accruing there-
from, or as to any bankruptcy or insolvency, or any execution under the
process of any Court of justice.'

_ The justices have jurisdiction under this section to commit for
trial even where the prosecution is not by nor on behalf of the person
assaulted (r).

Assaults by Husbands or Wives.— By the Summary Jurisdiction
(Married Women) Act, 1895 (58 & 59 Vict. c. 39) s. 4, ' Any married
woman whose husband who shall have been convicted summarily of an
aggravated assault within the meaning of sect. 43 of the Offences against
the Person Act, 1861 {ante, p. 896), or whose husband shall have been
convicted on indictment of an assault on her and sentenced to pay a
fine of more than five pounds, or to a term of imprisonment exceeding
two months . . . (s), may apply to any Court of summary jurisdiction
acting within the city, borough, petty sessional or other division or
district in which any such conviction has taken place ... for an order
or orders under this Act : {i.e. for release from obligation to cohabit
with her husband, custody of the children of the marriage, and mainten-
ance, sect. 5). Provided that where a married woman is entitled to apply
for an order or orders under this section on the ground of the conviction
of her husband upon indictment, she may apply to the Court before
whom her husband has been convicted, and that Court shall, for the
purpose of this section, become a Court of summary jurisdiction and
shall have the power without a jury to hear an application and make the
order or orders applied for ' (s).

An order cannot be made under the Act if the wife is proved to have
been guilty of adultery, unless the husband has condoned, or connived
at, or by his wilful neglect or misconduct induced to, the adultery (sect. 6).

(r) R. V. Gaunt, 18 Cox, 210. to eighteen months' imprisonment for

(«) This Act takes the place of 41 & 42 throwing corrosive fluid on his wife with

Vict. c. 19. In R. v. Knowles, 65 J. P. 27, intent to burn (24 & 25 Vict. c. 100, s. 29,

an order was made under the proviso in the ante, p. 867).

case of a husband convicted and sentenced

3m2

( 900a )

CAI^JADIAN NOTES.

OF ASSAULT AND BATTERY.

Sec. 1. — Definition of Assault. — ^Code see. 290.

To discharge a pistol loaded with powder and wadding at a person
within such a short distance that the party might have been hit, is
an assault. K. v. Cronan (1874), 24 U.C.C.P. 106. And see, as to
pointing fire-arms. Code sec. 122.

A blow struck in anger or which is intended or is likely to do
corporal hurt is a criminal assault, notwithstanding the consent to
fight of the person struck. E. v. Buchanan (1898), 1 Can. Cr. Cas.
442 (Man.).

A conviction for unlawfully assaulting V. by standing in front
of the horses and carriage driven by the said V. in a hostile manner,
and thereby forcibly detaining him, the said V. in the public highway
against his will, was held bad, in stating the detention as a conclusion
and not as part of the charge. It will not be inferred as a matter
of law that standing in front of the horses was a forcible detention,
th^re being no statement that the detention was by any other means
than mere passive resistance. E. v. McBUigott (1883), 3 O.R. 535.

Justification of the Use of Force in.

(a) Lawful Arrest.
Force in Executing Process. — Code sec. 39.

Re Arrest. — "Where the officer executing a warrant releases the
prisoner, at his request, for a temporary period on his promise to sur-
render himself, such does not constitute a voluntary abandonment of
the arrest, and a re-arrest is justified upon the same warrant. R. v.
O'Hearon (No. 2), 5 Can. Cr. Cas. 531.

(&) Peace Officer Preventing Escape. — Code sec. 41.

Shooting. — Only in the last extremity should a peace officer resort
to such a dangerous weapon as a revolver in order to prevent the
escape of an accused person who is attempting to escape by flight. R.
v. Smith (1907), 7 Western L.R. 92, 95, per Perdue, J.A.

"It is the duty of every citizen to assist in the pursuit and capture
of a criminal who is fleeing from arrest, when such citizen is called
upon to do so by a peace officer." R. v. Smith (1907), 7 "Western L.R.
92, 95, per Perdue, J.A. ; and see Code sec. 167.

900& Assault and Battery. [book IX.

{d) Preventing Escape in Other Cases.^Gode sec. 43.

(e) Preventing Escape or Rescue of Arrested Prisoner. — Code
sees. 44, 45.

(/) Preventing Breach of the Peace. — Code sec. 46.

{g) Arrest hy Railway Officer.— R.&.G. (1906) ch. 37, sec. 302.

(h) By Commander of Ship to Maintain Discipline. — Code sec. 64.

(^) Lawful Correction of Child or Pupil.— Code sec. 63.

School Teacher and Pupil. — A school teacher who inflicts unrea-
sonably severe chastisement upon a pupil is criminally responsible,
under Code sees. 63 and 66, for the excess of force, used, although
the punishment occasional no permanent injury and was inflicted
without malice. R. v. Gaul (1904), 8 Can. Cr. Cas. 178.

The following principles are laid down by Judge Chipman in the
Nova Scotia case of R. v. Robinson (1899), 7 Can. Cr. Cas. 52: —

(1) The authority of a school teacher to chastise a pupil is to be
regarded as a delegation of parental authority.

(2) Corporal punishment inflicted by a school teacher upon a
pupil is presumed to be reasonable and for sufficient cause, until the
contrary is shewn.

(3) Where there is a sufficient eaiise for punishing the pupil, and
the chastisement produces only temporary pain and no serious injury,
it will be presumed to be reasonable.

(4) Any punishment with an instrument calculated to produce
danger to life or limb is unreasonable and unlawful.

(5) Any punishment protracted beyond the child's powers of en-
durance is excessive and unlawful.

, (6) Any punishment which ordinarily may seriously endanger life,
limbs, or health, or which disfigures the child, or causes any other
permanent injury, is in itself unreasonable and unlawful.

(7) If there is any reasonable doubt whether the punishment was
excessive, the school teacher should have the benefit of the doubt.

(j) Consent.

(1) To the Infliction of Death. — Code sec. 67.

(2) By Child Under Fourteen. — Code sec. 294.
(k) Defence of Person or Property. — Code sec. 53.

Defendant being justified by this section if the force used by him
to repel an unprovoked assault was not meant to cause death or
grievous bodily harm, or was no more than was necessary for the pur-
pose of self-defence, and there being evidence which, if believed, would
have enabled the jury to find for defendant, the trial Judge erred in
charging the jury that there must be evidence that defendant could
not otherwise preserve himself from death or grievous bodily harm. R.
V. Ritter (1904), 8 Can. Cr. Cas. 31, 36 N.S.R. 417.

The trial Judge having instructed the jury that, to justify or
excuse the homicide, the prisoner must be found to have had reason-

CHAP. VI.] Defence of Person or Property. 900c

able grounds for apprehending imminent peril to his life or the lives
of his wife and children, and having made no mention of a reasonable
apprehension of grievous bodily harm .as a ground of justification
although the evidence pointed to both, a new trial was ordered. R. v.
Theriault (1894), 2 Can. Cr. Cas. 444.

(l) Self-defence in Case of Aggression. — Code sec. 54.

(m) Defence from Assault with Insult. — Code sec. 55.

An assault is not justified by the circumstance that the person
assaulted had then and there sworn at the defendant and used insult-
ing language towards him but without any attempt to assault the
defendant, whereupon the defendant assaulted the complainant. Went-
zell V. Winacht (1907), 41 N.S.R. 406.

Defence of Person or Property.

(a) Defence of Movable Property. — Code sec. 56.

(b) Defence with Claim of Right. — Code sec. 57.

(d) Defence of Dwelling House. — Code sec. 59.

(e) Defence at Night. — Code sec. 60.

The mere threat of parties standing outside of a dwelling house
that they will break in does not justify the householder in shooting at
and wounding them, unless the householder has first warned them to
desist and depart or that he would fire. Spires v. Barrick, 14 U.C.Q.B.
420.

(/) Defence of Real Property. — Code sec; 61.

The words are "if such trespasser resists such attempt. ' ' The word
"such" applies to an attempt by force referred to in the former part
of the section, and will not apply to mere words of warning or of
request to leave. Packett v. Pool (1896), 11 Man. R. 275, 32 C.L.J.
523. The latter part of the section does not apply until there is an
overt act on the part of the person in possession towards prevention
or removal, and an overt act of resistance on the part of the tres-
passer, md.

Trespass for assaulting the plaintiff, and shooting at and woimding
him with a pistol. Plea, that the plaintiff and thirty others threatened
to break into defendant's dwelling house where he was peacefully
residing with his family, and to assault, tar and feather, and ride
him oil a rail ; that they were armed and riotously assembled in front
of the house, and apparently in the .act of breaking into it to accom-
plish such threats; whereupon defendant, having good reason to
believe and verily believing that they were then breaking into his
house against his will, for the said purpose, in defence of himself and
his house, and in order to prevent them from entering and tarring
and feathering, etc., opposed such entrance, and in so doing unavoid-
ably committed the trespasses in the declaration mentioned, as he law-

900d Assault and Battery. [book ix.

fully might, using no unnecessary force or violence, and doing no more
injury to the plaintiff than was necessary to effect such purpose.

Held, on demurrer, plea bad, as shewing no defence, for before
firing defendant should have warned the plaintiff to desist and depart,
which was not averred. Spires v. Barrick, 14 U.C.Q.B. 420.

(g) Entry of House or Land in Day-time to Take Possession. —
Code sec. 62.

Punishment.

Common Assault. — Code sec. 291. •

Assault on Female. — Code sec. 292, as amended by 8 & 9 Edw.
VII. ch. 9.

Assault Causing Actual Bodily Harm. — Code sec. 2§5.

Assatdt with Intent to Boh. — Code sec. 448.

A conviction for common assault would be a bar to a subsequent
prosecution for assault occasioning bodily harm. Larin v. Boyd, 11
Can. Cr. Cas. 74.

The term "actual bodily harm" does not imply a wounding' or
breaking of the skin. E. v. Hostetter (1902), 7 Can. Cr. Gas. 221, 5
Terr. L.R. 363.

In a prosecution for an assault occasioning actual bodily harm,
it is improper to exclude evidence of statements sworn to by a witness
for the prosecution at a preliminary enquiry, the record of the deposi-
tions upon which had been lost, as to what was said by the accused
.at the time of the assault, as such statements of the witness had refer-
ence to statements of the accused forming a part of the res gestae.
R. V. Troop (1898), 2 Can. Cr. Cas. 22.

The fact that a prisoner committed for trial for assault occasioning
bodily harm was told by the constable removing him to gaol under the
commitment that the assaulted party would die, is not evidence of an
inducement or threat to the prisoner so as to make his subsequent
question, "What do you think I will get— about 15 years?" inadmis-
sible against him. The prisoner's question under the circumstances
raised a strong inference that he was present when the injuries were
inflicted. R. v. Bruce (1907), 12 Can. Cr. Cas. 275.

Sec. 2. — Of Certain Aggravated Assaults.
Punishment for.

Assault (a) with intent to commit indictable offences. Code
296(a).
(&) on officer in execution of his duty. Code sec. 296(&).

(d) with intent to rescue goods lawfully seized. Code sec.
296{d).

(e) within two miles of poUing booth on election day. Code sec.
296(e).

CHAP. VI. J Aggravated Assaults. 900e

Assault on Wife or Other Female Doing Bodily Harm. — 8 & 9
Bdw. VII. ch. 9, sec. 242.

Where a constable was assaulted while attempting to execute a
warrant issued by two justices for non-payment of a fine and costs
imposed on a person convicted of an offence, and the justice had
jurisdiction over the offence, and the' warrant was valid on its face,
it was held that a conviction for the assault would lie notwithstanding
the fact that part of the original conviction by the two justices was er-
roneous in awarding a punishment which was not authorized. R. v.
King (1889), 18 Ont. R. 56|6. The offenc^ of obstructing a peace
officer in the execution of his duty is dealt with by Code sees. 168
and 169.

A fine as well as imprisonment may be imposed on the conviction
of the accused, if tried either by a Court of criminal jurisdiction or by
a "magistrate" under the Summary Trials Procedure. Sec. 1058,
Ex parte McClements (1895), 32 C.L.J. 39.

A magistrate summarily trying, with the consent of the accused,
a charge of aggravated assault has jurisdiction to award costs against
the accused as well as to impose both fine and imprisonment. R. v.
Burtress (1900), 3 Can. Cr. Cas. 536 (N.S.).

An .assault on a constable attempting to serve a summons issued by
a magistrate on information charging violation of the Canada Tem-
perance Act is an assault on a peace officer in the due execution of his
duty. R. V. MacFarlane, 16 S.C.R. 393.

Opening a railway switch with intent to cause a collision whereby
two trains did come into collision, causing a severe injury to a person
on one of them, is not an assault. In re Lewis, 6 O.P.R. 236.

Sec. 3. — Summary Proceedings for Assault.

Justice May Try Common Assault. — Code sec. 732.
Justice May not Try Assault.
When question arises as to —
(o) title to land.
(h) bankruptcy or insolvency, or

(c) execution under process of any Court of Justice. Code
sec. 709.
Dismissal of Complaint. — Code sec. 733.
Release from Further Proceedings. — Code sec. 734.
Summary Trial of Indecent Assault {with Consent of Prisoner). —
Code sec. 773.

Summary Trial of Assault on Officer Engaged in Execution of His
Duty {with Consent of Prisoner) . — Code sec. 773.

Where the accused found committing an offence is arrested with-
out warrant by a peace officer, and on being brought before a police

900/ Assault and Battery. [book ix.

magistrate a written charge not under oath is read over to him, and
he thereupon consents to be tried summarily, the police magistrate has
jurisdiction to try the case although no information has been laid
under oath. E. v. McLean (1901), 5 Can. Cr. Gas. 67 (N.S.).

Proceedings on Arraignment. — Code sec. 783.

Code sec. 169 deals with resistance or obstruction to, and Code
sec. 296 (&) with assault on, an officer in the execution of his duty.
Code sees. 773 and 783, treats of the trial of both offences.

The provisions of Cr. Code sec. 169 fixing the punishment for which
anyone guilty of obstructing a peace officer shall be liable "on sum-
mary conviction," are controlled by Code sees. 773 and 778, and the
charge cannot be summarily charged by a magistrate except the con-
sent of the accused is given in conformity with sec. 778. E. v. Crossen,
3 Can. Cr. Cas. 153.

By see. 709 it is provided that no justice shall hear and determine
any case of assault or battery in which any question arises as to the
title to any tenements, hereditaments or any interest therein or accru-
ing therefrom, or as to any bankruptcy or insolvency, or any execu-
tion under the process of any Court of justice. Eent payable under a
lease of land is an incorporeal hereditament. Kennedy v. MaeDonnell
(1901), 1 O.L.E. 250.

A summary conviction for .assault upon a female, causing bruises,
will be presumed one of common assault under Code sees. 291 and 732,
and not of an assault occasioning bodily harm under sec. 295 where
there has been no election of summary trial. Larin v. Boyd, 11 Can.
Cr. Cas. 75.

A summary conviction imposing a sentence of sixty days is not
invalid where the statutory maximum is two months, unless there is
a reasonable probability of the sixty days ' term being in the particular
case more than two months. E. v. Brindley (1906), 12 Can. Cr. Cas.
170, per Graham, E.J. ; but see contra the decision of Eussell, J., in
the same ease. And see note 12 Can. Cr. Cas. 173.

A magistrate holding a preliminary enquiry for an indictable
offence may not proceed to summarily convict on the evidence
given therein for both the accused and the prosecutor for a lesser
offence included in the offence charged, although such lesser offence,
if originally charged, would have been within his jurisdiction for
trial. Ex p. Duffy (1901), 8 Can. Cr. Cas. 277.

Upon a summary trial for inflicting grievous bodily harm, the
magistrate may convict instead for the lesser offence of common
assault in like manner as a jury might do. The punishment which
may be imposed by a city stipendiary magistrate convicting of com-
mon assault upon a summary trial for a greater offence under sec.
777 is that which is provided in case of conviction upon indictment.

CHAP. VI. J Proceedings Before Magistrate. OOOgf

i.e., one year's imprisonment or a fine of $100. R. v. Coolen (1903),
7 Can. Cr. Cas. 522.

Where the sentence imposed upon a summary trial by consent be-
fore a city stipendiary magistrate for common assault was, in the
first instance, three months' imprisonment without mention of hard
labour, and the minute of adjudication did not include hard labour,
a formal conviction, including hard labour, and a commitment thereon
in similar terms are invalid and the accused will be discharged on
habeas corpus. Ex parte Carmichael, 8 Can. Cr. Cas. 19.

A city stipendiary magistrate holding a summary trial under
Code sec. 777, may impose imprisonment not exceeding one year for
common assault although Code sec. 291 specifies such punishment with
the addition of the words "if convicted upon an indictment." Sec.
777 gives to police and stipendiary magistrates of towns and cities the
power to award on summary trials held with the consent of the
accused, the same punishment as an Ontario Court of General Ses-
sions might impose on a trial on indictment. R. v. Hawes (1902), 6
Can. Cr. Cas. 238, per Graham, E.J. In the same case Townshend,
J., held, that, upon a summary trial for common assault, the imprison-
ment authorized by Code sec. 291 can only be imposed in the first
instance, and that where a fine is imposed the imprisonment in default
of payment thereof is controlled by Code sec. 739 (&) and is there-
fore limited to three months.

(901 )

CHAPTEE THE SEVENTH.

OF FALSE IMPRISONMENT, KIDNAPPING, AND CHILD-STEALING.

Sect. I. — False Imprisonment.

False imprisonment is unlawful and total restraint of the personal liberty
of another, whether by constraining him or compelling him to go to a
particular place (a) or by confining him in a prison or police-station or
private place, or by detaining him against his will in a public place (b). It
usually, but not necessarily involves an assault (c) or battery (d) or some
degree of threatened or actual violence to the person (e) ; but the essential
element in the offence is the unlawful detention of the person or the
unlawful restraint on his liberty. Such interference with the liberty of
another's movements is unlawful unless it can be justified at common law
or by statute as having been made under the lawful process or order of a
Court of Justice or a competent ofl&cial, or in exercise of a lawful authority
to arrest without such warrant or order in respect of an offence committed,
or to restrain the person imprisoned from committing some crime or
act dangerous to others. Thus it is false imprisonment to detain a

(o) Pocock V. Moore, Ry. & M. 321, where
the defendant had given a man in charge
of a police officer to be taken to a police
station.

(6) 2 Co. Inst. 589. Com. Dig. tit. ' Im-
prisonment ' (G.). 3 BI. Com. 127. In the
Queensland Criminal Code, 1899, the
common-law offence is thus described :
' any person who unlawfully confines or
detains another in any place against his
will, or otherwise unlawfully deprives an-
other of his personal liberty is guilty of a
misdemeanor.' In Bird v. Jones, 7 Q.B.
742, the majority of the Court held that
where the plaintiff in attempting to go in a
particular direction was prevented from
going in any direction but one, not being
that in which he endeavoured to pass, it
was not an imprisonment, and this, whether
the plaintiff had or had not a right to pass
in the first- mentioned direction. ' A prison
may have its boundary large or narrow,
visible and tangible, or, though real, still
in the conception only ; it may itself be
movable or fixed ; but a boundary it must
have ; and that boundary the party im-
prisoned must be prevented from passing :
he must be prevented from leaving that
place, within the ambit of which the party
imprisoning him would confine him, except
by prison breach.' Coleridge, J., said :
' In general, if one man compels another to

stay in any given place against Ms will, he
imprisons that other just as much as if he
locked him up in a room ; and it is not
necessary in order to constitute an impri-
sonment that a man's person should be
touched. The compelling a man to go in a
given direction against his will may amount
to imprisonment.' Patteson, J., said :
' Imprisonment is a total restraint of the
person for however short a time, and not a
partial obstruction of his will, whatever
inconvenience it bring on him.' See also
Warner v. Eiddiford, 4 C. B. (N. S.) 180.
Where the schoolmaster of a Board School
kept in a child for not preparing his home
lessons, it was held that he was liable to be
convicted of an assault, since the Education
Acts do not authorise the setting of Home
lessons. Hunter v. Johnson, 13 Q.B.D. 225.

{d) Bmmett v. Lyne, 1 B. & P. (N. R.)
255. A contrary view is expressed in
BuUer, (N. P.) 22, and is said to have been
adopted by Kenyon, C.J. in Oxley v. Flower
2 Selwyn (N. P.) tit. 'Imprisonment' (I.).

(e) See 3 Bl. Com. 127. Com. Digest,
tit. ' Imprisonment (H.). Bao. Abr. tit.
' Trespass,' (D. 3). 2 Selw. (N. P.) tit. ' Im-
prisonment.' Clerk and Lindsell on Torts
(3rd ed.), 177. Addison on Torts (8th ed.),
167.

902 Of False Imprisonment, Kidnapping, c^c. [Boofe iX.

prisoner after his acquittal (/) or after his term of imprisonment has
expired (g) ; and detention upon warrant or process which is regular in
form is unlawful if the warrant is executed at an unlawful time, e.g.
in case of civil process, on a Sunday (h), or on civil process in a privileged
place, such as a Eoyal palace (i) or a Court of justice (j) or of a person
privileged from arrest (k).

False imprisonment is indictable (?) atcommon lawaswell as actionable,
and is punishable by fine and (or) imprisonment without hard labour (m).
But it is unusual to proceed by indictment for false imprisonment
alone, though the fact of illegal detention may be stated as matter of
aggravation in an indictment for assault and battery.

In R. V. Lesley (n), the master of a British merchant ship was indicted
for false imprisonment of certain Chilians whom he had received on
board his ship in Chilian waters under contract with the Chilian govern-
ment to convey them to Liverpool. On a case reserved it was held that
he had been properly convicted on the indictment, inasmuch as the
detention of the Chilians in the ship after it left Chilian waters was
wrongful by the law of the flag, and being intentionally planned and
executed in the pursuance of the contract, was in law indictable as false
imprisonment.

In R. V. Linsberg (o), on an indictment for false imprisonment it was
ruled that mere false imprisonment without behef in the existence of any
authority, was indictable, although no actual assault or battery took
place.

Sect. II. — Of Kidnapping.^

The stealing and carrying away, or secreting of any person of any age
or either sex against the will of such person, or if he be a minor against

(/ ) Ince V. Cruikshank, 20 Cox, 210. eundo, morando et redeundo, and clergymen

(gf) Migotti V. Colvill, 4 C. P. D. 323. in performing religious rites and duties

(ft) 29 Car. II. u. 7. Arrest for crime on (24 & 25 Vict. c. 100, s. 36). See Mather,

Sunday is lawful. 11 & 12 Vict. v;. 42, s. 4. Sheriff Law, 182. Short and Mellor, Cr. Pr.

Hawkins t). Ellis, 16 M. & W. 172. Ex parte (2nded.) 347. As to assaults on foreign

Eggerton, 23 L. J. M. C. 41. Johnson v. diplomatic officers, vide ante, p. 299.

Coultson, Sir T. Raym. 250, and see {I) 1 Hawk. c. 60, s. 7. 4 Bl. Com. 218.

Anon., Willes, 459. Atkinson v. Jameson, For precedents of indictments for assaults

5 T. R. 25. B. V. Myers, 1 T. R. 25. and false imprisonment, see Cro. Giro. Comp.

(i) Mather, Sheriff Law, 181. Att.-Gen. (10th ed.), 79. 2 Stark. Cr. PI. (2nd ed.)

V. Dakin, L. R. 4 H. L. 338. Special pro- 385, 386. 3 Chit. Cr. L. 835 et seq. Arohb.

vision is made in the Metropolitan Police Cr. PI. (23rd ed.) 891.

Acts for the police of Royal Palaces. (m) Ante, p. 246.

(j) Ibid. This does not apply if the arrest (m) Bell, 220. This case was cited with

is by order of the Court itself, e.g. for con- approval in Phillips v. Eyre, L. R. 4 Q.B.

tempt of court. 225, 240, on the question of the justifioa-

(jfc) e.g. in the case of purely civil process tion under Chilian law of what was done in

a member of Pariiament during the Session Chilian waters. Cf. Canadian Prisoners'

(In re Gent. 40 Ch. D. 190 ; Ee Onslow's and case, 9 A. & E. 7, 31.

Whalley's oases, L. R. 9 Q.B. 208), a (o) [1905] 69 J. P. 107, Bosanquet

barrister or solicitor eundo, morando, et Common Serjeant. Cf. Hunter v. Johnson,

redeundo from a Court on professional busi- 13 Q.B.D. 225.

ness, and parties and witnesses in a cause

Ameeican and Colonial Notes.

1 It is said in America that a man would Kidnapping need only be the sending of the

be justified in resisting to the death an at- person to any other place. See S. v. Rol-

tempt to forcibly carry him out of his lins, 8 N. H. 550, and it is suggested that

country. SeeBishop, Amer.Cr.L.i.H.868(3). a mere intent to carry away is sufficient.

CHAP, vll.] Of Kidnapping. S03

the will of his friends or lawful guardians, sometimes called kidnapping,
is an offence at common law, punishable by fine and imprisonment with-
out hard labour (p). The most aggravated form of kidnapping is the
forcible abduction or stealing and carrying away of any person from his
own country into some other (q), or to parts beyond the seas, whereby he
is deprived of the friendly assistance of the laws to redeem him from
captivity (r). The carrying away of females is usually termed abduction,
and the statutes punishing various forms of such abduction are dealt with
post, p. 959. By the Habeas Corpus Act, 1679 (31 Car. II. c. 2) s. 11, 'for
preventing illegal imprisonment in prisons beyond the seas,' it is enacted
' that no subject of this realm, that now is or hereafter shall be an in-
habitant or resiant of this Kingdom of England, dominion of Wales or
Town of Berwick-upon-Tweed, shall or may be sent prisoner into Scotland,
Ireland, Jersey, Guernsey, Tangier or into any parts, garrisons, islands, or
places beyond the seas, which are or at any time hereafter shall be within
or without the dominions of His Majesty, his heirs and successors.' Such
imprisonment is then declared to be illegal; and an action for false
imprisonment is given to the party, with treble costs, and damages not
less than five hundred pounds (s). The section then proceeds thus : —
' And the person or persons who shall knowingly frame, contrive, write,
seal or countersign, any warrant for such commitment, detainer, or
transportation, or shall so detain, imprison, or transport, any person or
persons, contrary to this Act, or be any ways advising, aiding, or
assisting therein,' being lawfully convicted thereof, shall be disabled from
thenceforth to bear any office of trust or profit within England, &c., or
the dominions thereunto belonging, and shall incur the pains, &c., of the
Statute of PrcBwiunire (16 Eich. II. c. 5), and shall be incapable of any
pardon from the King of such forfeitures or disabilities (t). Sect. 15
provides that offenders may be sent to be tried where their offences
were committed, and where they ought to be tried. Sect. 16 enacts,
that prosecutions for offences against the Act must be within two years
after the offence committed, if the party grieved be not then in prison ;
and if he be in prison, then within two years after his decease, or delivery
out of prison, which shall first happen.

Though in terms applied to subjects the Act appears to extend
to persons owing temporary allegiance, and the removal of ahen friends

(p) 1 East, P.O. 429, 430. R. v. Baily. counties was repealed in 1826 (7 & 8 Geo.

Comb. 10; 90 E. R. 312. See U. S. Statt. IV. c. 27).

Rev. (ed. 1873), ss. 5525-7). By the (r) 1 East, P.O. 430.

Queensland Criminal Code, 1899, s. 354, (s) See Designy's case, T. Raym. 474;

' any person who forcibly takes or detains 83 E. R. 247.

another with intent to compel that other {t) S. 12 excepts persons who have

person to work for him against his will ' contracted in writing to be transported in

is said to comniit an offence at common beyond seas, and have received earnest on

law described in the Code as kidnapping.' the contract, and s. 13 excepts convicted

As to Indian law, see Mayne, Criminal felons who have prayed to be transported

Law of India (ed. 1896), 168, 637. and have been remanded to prison for that

(q) 43 Eliz. c. 13, which provided for the purpose,
punishment of kidnapping in the Border

Bishop, ii. s. 750. It is not clear how far See Bishop ii. s. 752. By the law of the

fraud or threats are sufficient, without any United States Rev. Statt, s. 5377, it is an

force being used, to constitute the offence offence to bring into America any person

of kidnapping under American statutes. of colour kidnapped in any other country.

904 Of False Imprisonment, Kidnapping, &c. [Boolc iX.

from the realm would seem to be unlawful unless effected in accordance
with the Extradition Acts and Treaties or the Aliens Act, 1905 (5
Edw. VII.c. 13) (m).

As to the slave trade and the kidnapping of Pacific Islanders, see
ante, Book II. Chapter II. pp. 271 et seq.

Sect. III. — Of Child-Stealing.

By 24 & 25 Vict. c. 100, s. 56, ' Whosoever shall unlawfully, either by
force or fraud, lead or take away, or decoy or entice away or detain, any
child under the age of fourteen years, with intent to deprive any parent,
guardian, or other person having the lawful care or charge of such child,
of the possession of such child, or with intent to steal any article upon or
about the person of such child, to whomsoever such article may belong,
and whosoever shall, with any such intent, receive or harbour any such
child, knowing the same to have been, by force or fraud, led, taken,
decoyed, enticed away, or detained as in this section before mentioned,
shall be guilty of felony, and being convicted thereof shall be liable at
the discretion of the Court, to be kept in penal servitude for any term not
exceeding seven years ... or to be imprisoned . . . (v), and, if a male
under the age of sixteen years, with or without whipping : Provided that
no person who shall have claimed any right to the possession of such
child, or shall he the mother or shall have claimed to be the father of an
illegitimate child, shall be liable to be prosecuted by virtue hereof on
account of the getting possession of such child, or taking such child out
of the possession of any person having the lawful charge thereof ' (w).

The provisions as to evidence, &c., of the Children Act, 1908 {x),
apply to this offence.

In E. V. Duguid (y), it was held that a conspiracy with the mother of
a child under fourteen to carry the child away from its lawful guardian
was indictable even if the mother could not herself be convicted of an
offence against sect. 56 or of a conspiracy to commit it (z).

A person may be convicted under this section even though the child
is no longer in his custody and there is no evidence to shew where it is (a).
The force or fraud may be committed on the parent or guardian of the
child, or on the child itself, or upon any other person (b).

(u) Ante, p. 208. As to the right to ex- in the proviso words are added to include

elude or expel aliens, see Musgrove v. Chung the mother of an illegitimate child.

Teeong Toy [1891], A. C. 272. Att.-Gen. {x) Post, p. 918.

for Canada v. Cain and Gilhula [1906], {y) 75 L. J. K. B. 470 ; 21 Cox, 200 ; 70

A. C. 542. Robtelmes v. Brenan [1906], J. P. 294 (C. C. R.).

4 Australian C. L. R. 395. Law Quarterly (z) An application to quash a warrant

Beview, 1890, p. 27. issued against the mother was refused.

(v) For other punishments see 54 & 55 The Court declined to decide the question

Vict. u. 69, s. I, ante, pp. 211, 212. The of criminal liability of the mother on such

words omitted were repealed in 1892. an application. See ex parte Chetwynd,

(w) Taken from 9 Geo. IV. c. 31, s. 21 43 L. J. (Newsp.), 125, 223.

(E), and 10 Geo. IV. c. 34, s. 25 (I). The (a) R. v. Johnson, 15 Cox, 481 (C. C. R.).

word 'unlawfully ' is substituted for (6) R. v. BelUs, 62 L. J. M. C. 155 ; 17

' maliciously,' which was inaccurately used Cox, 660 (C. C. R.), over-ruling R. v.

in the former enactments. The age of the Barrett, 15 Cox, 658, where A. L. Smith, J.,

child is extended from ten to fourteen held that the force must be on the child,
years, and ' guardian ' is introduced ; and

CHAP. VlL] Illegally Leaving Merchant Seamen l^ehind. 005

Sect. IV. — Illegally Leaving Merchant Seamen Behind (c).

By the Merchant Shipping Act, 1906 (6 Edw. VII. c, 48) s. 43 {d), ' A
person belonging to a British ship shall not wrongfully force a seaman (e)
on shore and leave him behind, or otherwise cause a seaman to be wrong-
fully left behind at any place either on shore or at sea, in or out of His
Majesty's dominions, and if he does so he shall in respect of each offence
be guilty of a misdemeanor (h).

By sect. 36 (1), ' The master of a British ship shall not leave a sea
man {d) behind at anyplace out of the United Kingdom, ashore or at sea,
except where the seaman is discharged in accordance with the Merchant
Shipping Acts, unless he previously obtains endorsed on the agreement
with the crew, the certificate of the proper authority (/) as defined for
that purpose in this Act stating the cause of the seaman being left
behind, whether the cause be unfitness or inability to proceed to sea,
desertion, or disappearance or otherwise {g).

(3) If the master of a ship fails to comply with this section he shall
(without prejudice to his liability under any other provision of the
Merchant Shipping Acts, be guilty in respect of each offence of a mis-
demeanor Qi), and in any legal proceeding for the offence it shall be on the
master to prove that the certificate was obtained or could not be obtained
without unreasonable delay to the ship or was unreasonably withheld.'

As to the jurisdiction and venue on trials for there offence?, see 57
58 Vict. c. 60 S3. 684, 685, 686, 687 {ante, p. 43).

On an indictment on 5 & 6 Will. IV. c. 19 (rep.), against a master of
a vessel for leaving one of his crew at Quebec, in Lower Canada, for the
defence a certificate was put in evidence which stated that the defendant
appeared before E. B. a commissioner for carrying the Act into effect, and
being duly sworn, said that the seaman in question did desert from the
vessel while at Quebec, and was then absent without leave. It was held
that this certificate was insiifficient, inasmuch it did not certify the facts
as ascertained by the proper officer, that the captain deposed to certain
things before him {i).

The defendant was master of a merchant ship, belonging to a subject
of the United Kingdom {j), namely, J. H. and E. W. and H. G. were

(d) This section re-enacts with variations refuse it. 6 Edw. VII. o. 48, s. 36 (2).

57 & 58 Vict. 0. 60, s. 187, which took the (^r) This section superaedes 57 & 58 Vict,

place of 17 & 18 Vict. c. 120, s. 205, which c. 60, s. 188.

section superseded and replaced the earlier (h) Punishable under 57 & 58 Vict. e. 60,

enactments, 5 & 6 Will. IV. c. 19, ss. 40, 42 a. 680, by fine or imprisonment with or

and 7 & 8 Vict. u. 112, s. I. without hard labour for not over two years

(e) Including apprentices to the sea ser- on a conviction on indictment. It may be
vice. 6 Edw. VII. o. 48, s. 49 (2). prosecuted summarily, in which event the

(/) The proper authority in a foreign maximum fine is £100, and the maximum

country is a British Consular official, or, if term of imprisonment is six months with or

there be none, two, or if there are not two, without hard labour.-

one British merchant ; in a British posses- («) R. v. Smison, 1 Cox, 188, Bullock,

sion, the Chief Officer of Customs at or near Commr., after consulting the Recorder,

the place. 6 Edw. VII. u. 48, s. 49 (1). (j) It would seem to be enough to name

The authority is to examine into the or describe the ship sufficiently to identify

grounds of apphcation, and may take evi- her, or to aver that she is British,
denoe on oath, and may grant or refuse the

906 Of False Imprisonment, Kidna/pfing, <^c. [Booic IX.

persons belonging to the crew, duly engaged to serve in a voyage, which
was not then completed ; the indictment alleged that the defendant at
B. unlawfully, wilfully, and wrongfully did leave the said E. W. and H. G.
behind on shore, before the completion of their voyage, on the plea that
they were not in a condition to proceed on the voyage, he not having
obtained a previous certificate in writing of the said consul or of any such
functionary of their not being in such condition, there being time to obtain
such certificate {Tc). It appeared that E. W. and H. G. were both ill when
the vessel put into B. on her voyage, and went ashore, and saw the doctor,
who said they were not sick enough to be left on shore, and go to the
hospital, as they wished ; they then went to the English consul, who said
he could do nothing without the doctor's certificate, that they came again
and asked for their clothes, and the mate, believing that they had got
their discharge, though they did not say so, let them have them ; that
they were very ill, and if they had not gone on shore at B. and got medical
advice, one of them would have died. The collector of customs of the
port of Harwich produced a certificate of the registry of the ship with the
name J. H. in it, which he knew to be his signature, but did not see him
write it : the declaration was signed by him. He knew H. personally.
He did not know where he was born : he was a British subject ; he knew
he was so by the declaration which he had made. He believed him to be
an Englishman. Cresswell and Coleridge, JJ., were of opinion, first,
that the allegation of ownership was a material allegation, and must be
proved as laid ; secondly, that the 41st if) and 42nd sections of 5 & 6
Will. IV. c. 19, did not create separate offences, but that they should be
taken together, and were intended to shew that certain conduct on the
part of the seaman will not excuse the captain, unless he produce the
required certificate ; and therefore, thirdly, that on this indictment,
which charged the defendant with wrongfully and wilfully leaving behind
him two persons belonging to his crew, the only answer he could give would
be either to prove the certificate, or shew the impossibility of obtaining
it ; and not having done either of these things, if the jury believed the
evidence, he must be found guilty (m).

(h) The count concluded with an aver- sary. See post, p. 981.
naent that the defendant was found within (I) Qumre, 40th.

the jurisdiction of the Central Criminal (m) R. v. Dunnett, 1 C. & K. 425.

Court, which appears to be now unneces-

( 906a )

CANADIAN NOTES.

OF FALSE IMPRISONMENT,. KIDNAPPING, AND CHILD-STEALING.

Sec. 1. — False Imprisonment.

This is not the subject of any provision of the Code. It is, however,
still an offence at common law.

To compel a man to go in a given direction against his will may
amount to an imprisonment; but if a man merely obstructs the pas-
sage of another in a particular direction whether by threats of per-
sonal violence or otherwise, leaving him at liberty to stay where he is
or go in any other direction if he pleases, he cannot be said to thereby
imprison him. Bird v. Jones (1845), 7 Q.B. 742, per Patteson, J.

Detention of a prisoner after expiry of his sentence is false im-
prisonment. Moone v. Rose (1869), L.R. 4 Q.B. 486.

Sec. 2. — Kidnapping. — Code see. 297 (as amended by 8 & 9 Edw.
VII. ch. 9).

Sec. 3. — Child Stealing. — Code sec. 316.

The child's own father may be guilty of child-stealing within the
Code, if after a divorce by a Court of competent jurisdiction and the
award thereon of the custody of the child to the mother, the father
wilfully removes the child from her custody. R. v. W.atts, 5 Can. Cr.
Cas. 538.

Where a divorce decree of a Court of competent jurisdiction in
the United States has awarded the custody of a child to the father as
against the mother, and the mother thereafter removes .and conceals
the child for the purpose of evading the decree, a prima facie case
for extradition is thereby made out against the mother upon a charge
of child-stealing. And, semble, the offence of child-stealing under the
Code, may be complete against the child 's mother although the father,
to whom the child's custody has been awarded, has never had any
actual separate possession of the child. Re Lorenz (1905), 9 Can. Cr.
Cas. 158.

Sec. 4. — Illegally Leaving Merchant Seaman Behind.
R.S.C. (1906), ch. 113, sees. 265, 266.

(%1)

CHAPTER THE EIGHTH.

OP NEGLECT AND ILL-TKEATMENT OF THE YOUNG, THE HELPLESS
AND THE INSANE.

Sect. I. — Common Law.

It is an indictable misdemeanor at common law to refuse or neglect to
provide sufficient food or other necessaries for any person such as a child,
apprentice, or servant, unable to provide for and take care of himself,
whom the party is obliged by duty or contract to provide for ; so as
thereby seriously to injure health (a). The obligation is, it would seem,
limited to cases where the person neglected is of tender years or helpless
or so dominated by the parent or employer as to be unable to do for
itself (b). It has been extended to cases where an aged or sick person,
neither servant nor apprentice, but under the care or control of another,
is neglected so as to cause death or injury to health (c). Where an
indictment stated that W., ' an infant of tender years,' was placed ' under
the care and control of ' the prisoners as a servant, and that it was their
duty to supply her with sufficient food, &c., and also to permit her to
have sufficient food, &c., and that they neglected to supply her with
sufficient food, &c. ; and refused to let her have sufficient food, &o. ;
whereby her health was injured. W. was between fourteen and seventeen
years of age during the time of the ill-treatment alleged, and it did not
appear that she was prevented from going out and complaining of
the treatment she received. It was held, first, that W. was not
an infant of tender years. A person of tender years is a person in-
capable of acting or judging for himself. And children of much earlier
age may contract marriage and other relations, and are competent in law
to act for themselves. Secondly, that the terms ' under the care and
control ' of the prisoners meant under such control as to be prevented
from acting for herself, and that this girl was a free agent ; and, therefore,
the indictment was not proved (d).

(a) R. V. Friend, R. & R. 20, and MS. of proper care, it is murder in the party

Bayley, J. Chambre, J., differed, tliinking neglecting it,' Denman, C. J., said : ' If the

it not an indictable offence, but a matter person has the actual custody,' and Patte-

founded wholly on contract, in this which son, J., added : ' Or the child be part of his

was the case of an apprentice. See R. v. family, would it be murder in the parent to

Senior [1899], 1 Q.B. 283, 289. As to the abscond ? ' As regards ill-treatment, this

neglect of paupers by overseers of the poor, opinion seems to be over-ridden by R. «/.

see ante, p. 606. Connor [1908], 2 K.B. 26, post, p. 914.

(6) The obligation has been held to apply (d) Anon. 5 Cox, 279, Coleridge and

to a servant (R. v. Ridley, 2 Camp. 650), Cresswell, JJ. The latter said, ' If being

except where the servant was of full age of ordinary or even superior intellect and

and able to take care of herself and to leave capacity, she was so under the control of

the service. R. v. Smith, L. & C. 607, 620, the defendants, so impressed with fear

625. either from being watched or being threat-

p. 678. As to lunatics, vide post, p. 924. tance of her natural defenders or of other

In Urmston v. Newcomen, 4 A. & E. 899, persons, then a duty would devolve on the

in answer to a remark by counsel, that, ' by defendants greater than that arising from

the common law if a cluld perish for want the civil contract.'

608 Of Neglect and Ill-treatment of the Young, &g. [Book ix.

In these cases it must be both alleged and proved that the health was
seriously injured. In R. ■;;. Phillpot (e), the indictment alleged that the
prisoner was the mother, and had the care of an infant female child
unable to support itself, and that it was the duty of the prisoner to support
the child, but that the prisoner unlawfully neglected to support it, and
unlawfully abandoned it without necessary food for a long space of time,
whereby the child was greatly injured and weakened. The prisoner was
the wife of a seaman, and received a portion of his pay, and was able to
work and get her living if she chose ; she left the child without food
from Monday evening till Thursday morning, and but for the attention
of a poor neighbour, the child miist have suffered most severely, and
might probably have died for want of food, and though it did suffer
in some degree from want of food, it was not to any serious extent ; and
it was held that the conduct of the prisoner in absenting herself, irre-
spective of any actual injury to the child, was not a misdemeanor at
common law, and therefore it was necessary to prove the averment that
the child was greatly injured and weakened ; and that the evidence that
the child had suffered to some but not to any serious extent was not
sufficient, as it did not shew any injury to health (/).

It is the duty of all persons having children of tender age, whom they
cannot support, to endeavour to obtain the means of getting them support,
and if they wilfully abstain for several days from resorting to the poor-
law authorities of the place where they have by law a right to support,
they are criminally responsible for the consequences (gr).

In R. V. Chandler Qi), the indictment alleged that the prisoner was a
single woman and the mother of a child of very tender age and unable
to provide for itself, and that it was the duty of the prisoner to provide
food for the child, she ' being able and having the means to perform her
said duty,' and that she unlawfully neglected to provide sufficient food for
the child, whereby its life was endangered. There was no evidence that
the prisoner actually had the means of supporting the child ; but it was
proved that she could have applied to the relieving officer of the iinion,
and, had she done so, she would have been entitled to and would have
received relief for herself and the child adequate to their due support
and maintenance, and that she had not made any such application. It
was held that the allegation in the indictment that the prisoner had the
means of maintaining the child was not proved.

In R. V. Rugg (i), the first count of the indictment charged the prisoner
with neglecting to provide sufficient food for her infant child, ' she being
able and having the means to perform her duty ' in that respect. The
jury found her guilty on the ground that ' if she had applied to the
guardians for relief she would have had it,' and the Court held, on the
authority of R. v. Chandler (supra) that the finding of the jury was not
sufficient to maintain the count. A second count charged the neglect to
provide food, but omitted the allegation that she had means to do so,
and it was doubted if the count was good in law (j) ; Bovill, C. J., said :

(e) Dears. 179. VII. c. 67, s. 12, post, p. 913.

(/ ) See R. V. Cooper, 1 Den. 459 ; 20 L. (h) Dears. 453.

J. M. C. 219. R. V. Hogan, 2 Den. 277. {i) 12 Cox, 16.

24&25Vict. c. 100, s. 27, posi, p. 911. (j) See R. v. Ryland, infra. R. v.

{g) R. u. Mabbet, 5 Cox, 339. 8 Edw. Shepherd, L. & C. 147, ante, p. 675.

CHAP. VIII.] Common Law. 909

' We have to consider the effect of the verdict of the petit jury on the
first two counts. They found a verdict of guilty, but added, " we do so
on the ground that if she had applied " (to the guardians) " for relief,
she would have had it." The case of E. v. Chandler shews that that
finding was not sufficient to maintain the first count of the indictment,
which contains the allegation of ability and means on the part of the
prisoner. On the second count of the indictment, assuming that count
to be good, which we doubt, the allegation is, that the prisoner unlawfully
and wilfully did neglect and refuse to find and provide her child with
necessary food, &c. ; but there is no allegation that the prisoner had the
means of procuring, or could have procured it, and wilfully abstained
from doing so. The allegation in that count is not found by the jury.
On these grounds we are of opinion that the conviction should be quashed.'
This ruling conflicts with R. v. Mabbet {swpra) and appears to be no longer
law : see the provisions in sect. 12 of the Children Act, 1908 {fost,
p. 913).

An indictment for neglecting to provide sufficient food and sustenance
for a child of tender years, whereby the child became ill and enfeebled,
averred that it was the duty of the prisoner to provide for, give, and
administer to the said shild wholesome and sufficient meat, drink, and
clothing for the sustenance, &c., of the said child, and that he unlawfully,
and contrary to his said duty in that behalf, did omit, neglect, and refuse
to provide for, &c., the child : — It was held that the indictment sufficiently
alleged the breach of duty, and that the prisoner had the ability to provide
but omitted to exercise it (k).

A parent who wilfully withholds necessary food from his child, with
the wilful determination by such withholding to cause the death of the
child, is guilty of murder, if the child dies, and if he does so negligently
but not wilfully, and the child dies in consequence of the neglect, he is
guilty of manslaughter (l).

Medical Aid. — At common law a parent appears to be bound to provide
medical attendance for his child (m), and a master bound to provide
medical attendance for his apprentice (n). But the obligation is said not
to extend to servants (o). When the child is under sixteen want of
means is no excuse if the poor-law doctor is available.

As to liability for death caused by failure to provide medical advice,
see ante, p. 674.

Sect. II. — Of Ill-teeatment of Appkentices and Servants.

In the case of apprentices and servants the common law is supple-
mented by 24 & 25 Vict. c. 100, s. 26 {p), ' Whosoever, being legally liable (q),

(k) R. V. Ryland, L. R. 1 C. C. R. 99. v. Norman, 4 C. & P. 80. Wennall v.

The indictment should aver that the child Adney, 3 B. & P. 217. Vide ante, p. 669.
was of tender years and unable to provide (o) R. v. Smith, ubz supra.

for itself. ip) Taken from 14 & 15 Vict. o. 11, s. 1,

(/) R. V. Conde, 10 Cox, 547. R. v. with the substitution of the words in itahos

Senior [1899], 1 Q.B. 283, ante, pp. 672, 674. for the word ' assault.'

(m) R. V. Senior [1899], 1 Q.B. 283. (?) i.e. it would seem under contract.

For statutory obligations vide 8 Edw. VII. See ruling of Barton, J., Belfast Assizes,

u 67 s 12 post, p. 913. 1901, cited by Clarke Hall, Law relating to

' (»)' R. v. Smith, 8 C. & P. 153. Sellen Children (ed. 1906), p. 40.

910 Of Neglect and Ill-treatment of the Young, &c. [book ix.

either as a master or mistress, to provide for any apprentice or servant
necessary food, clothing, or lodging, shall wilfully and without lawful
excuse refuse or neglect to provide the same, or shall unlawfully and
maliciously do or cause to he done any bodily harm to any such apprentice
or servant, so that the life of such apprentice or servant shall be endangered ,
or the health of such apprentice or servant shall have been or shall be
likely to be permanently injured, shall be guilty of a misdemeanor, and
being convicted thereof shall be liable . . . to be kept in penal
servitude . . . (r). This enactment contains no words making it
necessary to prove that the apprentice was of tender years or under
the dominion or control of the master or mistress. The words 'so
that . . . injure' appear to apply both to refusal or neglect to supply
food and to causing bodily harm. The enactment is silent as to medical
attendance. By sect. 73 guardians of the poor may be required (s) to
prosecute offenders under this sect. Where the apprentice or servant is
under sixteen the provisions as to evidence, &c., of the Children Act,
1908 (post, p. 918) are applicable.

By the Conspiracy and Protection of Property Act, 1875 (38 & 39
Vict. c. 86), s. 6, a master is punishable on summary conviction by
imprisonment not exceeding six months, with or without hard labour for
wilfully and without lawful excuse neglecting to supply necessary food,
&c., or medical aid, whereby the health of the servant or apprentice is
likely to be seriously or permanently injured (ss).

Sect. 111. — Dangerous Performances by Young Persons.

By the Children's Dangerous Performances Act, 1879 (42 & 43 Vict,
c. 34), s. 3 . . . ' Where in the course of a public exhibition or per-
formance, which in its nature is dangerous to the life or limb of a child
under such age as aforesaid ' (under fourteen years) ' taking part therein,
any accident causing actual bodily harm occurs to any such child, the
employer of such child shall be liable to be indicted as having committed
an assault, and the Court before whom such employer is convicted on
indictment shall have the power of awarding compensation not exceeding
£20, to be paid by such employer to the child, or to some person named
by the Court on behalf of the child, for the bodily injury so occasioned,
provided that no person shall be punished twice for the same offence (t).

By sect. 4 of the Act, if the child is apparently of the age alleged, it
lies on the accused to prove that the child is not of that age (u).

By the Dangerous Performances Act, 1897 (60 & 61 Vict. c. 52) s. 1,

(r) For other punishments see 54 & 55 cumulative on or alternative to the punish-

Vict. 0. 69, a. 1, ante, pp. 211, 212. The ment. The earlier part of the section

words omitted were repealed in 1892. imposes a penalty on summary conviction

(s) This does not exclude prosecutions for causing a child under fourteen to take

by other persons. Caswell v. Morgan, 28 part in a pubho performance, whereby in

L. J. M. C. 209. Cf. 8 Edw. VII. c. 67, the opinion of the Court the life or limbs

s. 34, post, p. 921. of the child shall be endangered.

(ss) The accused may elect to be tried [u) Gf. 8 Edw. VII. c. 67, s. 123, post,

on indictment, vide, ante, p. 17. p. 922. As to training children under

{t) It is difficult to see how this offence sixteen for exhibitions of a dangerous

should be described in an indictment, and nature, see 3 Edw. VII. o. 45, s. 3 (5).
it is not clear whether the compensation is

CHAP. VIII.] Exposing or Abandoning Children under Two. 911

' The Children's Dangerous Performances Act, 1879 (supra) shall apply in
the case of any male young person under the age of sixteen years and any
female young person under the age of eighteen years in like manner as it
applies in the case of a child under the age of fourteen years ' (v).

By sect. 2 (1) ' Except where an accident causing actual bodily harm
occurs to any child or young person no prosecution or other proceeding
shall be instituted for an offence against the Children's Dangerous Per-
formances Act, 1879, as amended by this Act without the consent in
writing (w) of the chief officer of police (x) of the area in which the offence
is committed. In the case of persons under 16 the provisions as to
evidence of the Children Act, 1908 (fost, p. 918) are applicable.

Sect. IV. — Exposing or Abandoning Children under Two.

By the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100),
s. 27 (y), ' Whosoever shall unlawfully abandon or expose (z) any child,
being under the age of two years, whereby the life of such child shall be
endangered, or the health of such child shall have been or shall be likely
to be permanently injured, shall be guilty of a misdemeanor, and being
convicted thereof shall be liable . . . to be kept in penal servitude ... (a).

The provisions of 8 Edw. VII. c. 67, posi, p. 918, as to presumption of
age, evidence, &c., apply to proceedings under this section.

The prisoners were convicted on an indictment under sect. 27, which
charged that they did abandon and expose a child, under the age of two
years, whereby the life of the child was endangered. One of the prisoners
was the mother of the child, which was illegitimate, and both prisoners
put the child in a hamper at S., wrapped up in a shawl, and packed with
shavings and cotton wool, and the mother took the hamper to the booking
office of the railway station at M., and left it, having paid the carriage of
it to G. The hamper was addressed to the lodgings of the father of the
child at G. She told the clerk at the office to be very careful of it, and
to send it by the next train, which was due in ten minutes from that time.
Upon the address were the words written ' With care ; to be delivered
immediately.' The hamper was carried by the passenger train, and was
delivered at its address in a little less than an hour from leaving M. On
its being opened the child was found aUve. The child was taken by the
relieving officer the same evening to the union workhouse, where it lived
for three weeks afterwards, when it died from causes not attributable to
the conduct of the prisoners, or either of them. It was proved to have

(«) Vide supra, 910. may be, or be likely to be, endangered. See

(w) It is submitted that this means con- R. v. Hogan, 2 Den. 277 ; R. v. Cooper,
sent previous to the institution of the pro- 1 Den. 459, 2 C. & K. 876 ; R. v. Phillpot,
oeeding. See Thorpe v. Priestnall [1897], 1 Dears. 179 ; R. v. Gray, D. & B. 303,
1 Q.B. 159, decided on a similar provision which shew the necessity for this enact-
in the Sunday Observance Prosecution Act, ment. In R. v. Hogan, an indictment at
1871 (34 & 35 Vict. c. 87). common law for abandoning was held bad

{x) In the City of London the Commis- because it did not aver injury to the child

sioner of City Police, and elsewhere in nor means in the parent.
England defined in the Police Act, 1890 (z) As to exposure amounting to assault,

(53 & 54 Vict. c. 45). vide post, p. 912.

(«) Thissection wasnewlawin 1861, and (a) For other punishments see 54 & 55

is intended to provide for oases where child- Vict. e. 69, s. 1, oreie, pp. 211, 212. The

ren are abandoned or expdsed under such words omitted are repealed,
circumstances that their lives or health

912 Of Neglect and Ill-treatment of the Young, &g. [book ix.

been a delicate child :— On a case reserved a conviction on these facts
was upheld (6).

The prisoner was the father of a child under two years of age. The
child was in the custody of the mother, who was living apart from the
prisoner. The mother brought the child to him and left it outside the
door of his house at about seven o'clock p.m. He was inside, and she
called out ' Bill, here 's your child, I can't keep it ; I am gone.' She left,
and the prisoner afterwards came out of the house, stepped over the child,
and went away. An hour and a half afterwards the child was still lying
in the road outside the wicket of the garden ; it was dressed in short
clothes, and had nothing on its head. The prisoner's attention was called
to the child when he came home, after a further interval of an hour and a
half. He said that he should not touch it, and that those that brought
it there must come and take it. The child was found at one a.m. lying cold
and stiff : — On a case reserved it was held, that the prisoner was rightly
convicted of having abandoned and exposed the child, within the meaning
of sect. 27 (c).

In E. V. Eenshaw {d), a mother left her child, ten days old, at the
bottom of a dry ditch, by which there was a path, and a lane separated
from the ditch by a hedge ; Parke, B., is reported to have said that
' there were no marks of violence on the child, and it does not appear in
the result that the child actually experienced any inconvenience, as it
was providentially found soon after it was exposed, and therefore,
although it is said in some of the books that an exposure to the inclemency
of the weather may amount to an assault, yet, if that be so at all, it can
only be when the person suffers a hurt or injury of some kind or other
from the exposure (e), The acts made the subject of indictment in that
case now fall within 24 & 25 Vict. c. 100, s. 27, and Part II. of the
Children Act, 1908, fost, p. 913, and the provisions of that Act as to
evidence, &c. {fost, p. 918) apply.

Sect. V. — Cruelty to Children.

The common-law liability for neglect of children has been stated, anie,
p. 907.

The history of legislation on the subject is as follows. By sect.
37 of the Poor Law Amendment Act, 1868 (31 & 32 Vict. c. 122), it was
made an offence for a parent wilfully to neglect to provide adequate food,
clothing, medical aid, or lodging for his child being in his custody under
the age of fourteen, whereby the health of such child shall have been or
shall be likely to be seriously injured (/"). This section was repealed in
1889 by 52 & 53 Vict. c. 44, which by sect. 1 made it a misdemeanor for

(6) R. u. Falkingham, L. R. 1 C. C. K. 222. abandon it, as that is an unlawful act,

(d) 2 Cox, 285. ' This case is open to she is guilty of battery. C. S. G.
doubt on the ground that it seems to make (e) Cf. R. v. Ridley, 2 Camp. 650.

the question, whether the act of the prisoner (/) See R. v. Downes, 1 Q.B.D. 25; R.

was a battery or not, depend on the result v. Morby 8 Q.B.D. 571, ante, p. 674, aa to

of that act ; whereas, it is conceived that liabihty to indictment for manslaughter for

that act was either a battery or not a neglect to provide medical aid to a child,

battery at the moment it was committed. And as to servants and apprentices, vide.

It is confidently submitted that the instant ante, p. 909.
a mother deposits a child with intent to

CHAp.viii.]. Of Cruelty to Children. &1S

a person over sixteen, having the custody, control, or charge of a child
under sixteen wilfully to ill-treat, neglect, abandon, or expose such child in a
manner likely to cause such child unnecessary suffering or injury to its
health.

The Act of 1889 was repealed in 1894 and re-enacted without alteration
as sect. 1 (1) of 57 & 58 Vict. c. 41.

Sect. 1 (1) of the Act of 1894 was repealed in 1904 and re-enacted
without alteration as sect. 1 (1) of 4 Edw. VII. c. 15.

The Acts of 1889, 1894, and 1904 contain no reference to medical aid ;
but in R. V. Senior (g) deliberate omission to obtain necessary medical or
surgical aid was held to fall within the words ' likely to cause unnecessary
sutfering, &c.'

Sect. 1 of the Act of 1904 was in 1908 repealed and re-enacted as sect.
12 of the Children Act, 1908 (8 Edw. VII. c. 67), in which section reference
to medical aid is again introduced (sub-sect. 1).

Part II. of the Children Act, 1908 (8 Edw. VII. c. 67), deals with
the prevention of cruelty to children and young persons.

By sect. 12, ' (1) If any person over the age of sixteen years, who has
the custody, charge, or care (h) of any child or young person, wilfully
assaults, ill-treats, neglects, abandons, or exposes such child or young
person, or causes or procures such child or young person to be assaulted,
ill-treated {i), neglected, abandoned, or exposed, in a manner likely to
cause such child or young person unnecessary suffering or injury to his
health (including injury to or loss of sight, or hearing, or limb, or organ
of the body, and any mental derangement), that person shall be guilty of
a misdemeanor, and shall be liable —

(a) on conviction on indictment, to a fine not exceeding one hundred
pounds, or alternatively, or in default of payment of such fine,
or in addition thereto, to imprisonment, with or without hard
labour, for any term not exceeding two years ; and
(6) on summary conviction, to a fine not exceeding twenty-five
pounds, or alternatively, or in default of payment of such fine,
or in addition thereto, to imprisonment, with or without hard
labour, for any term not exceeding six months (j) ;
and for the purposes of this section a parent or other person legally liable
to maintain a child or young person shall be deemed to have neglected
him in a manner likely to cause injury to his health if he fails to provide
adequate food, clothing, medical aid, or lodging for the child or young
person, or if, being unable otherwise to provide such food, clothing,
medical aid, or lodging, he fails to take steps to procure the same to be
provided under the Acts relating to the relief of the poor (A).

' (2) A person may be convicted of an offence under this section, either

„-, , n T! 9M ante T) 674 (?) The section thus far re-enacts 4

subject to *^ 'i''?i898], 1 Q.B. 79, decided defendant may elect to be tned by a jury.

p. 921. R- '<'-P%}i ^' ^ 24 & 43 Vict. c. 49, s. 17, ante, p. 17.

on the Act o^ ^^{^^^ direct evidence is (h) Are-enactment of 4 Edw. VII, c. 15.

(»■) Q\'^'l prove this. R. v. Brinton a. 23 (2). As to common law, mde ante

essential to i ^^^^ ^^g ^ j gp^

111 ^t rByland L. R 1 C. C. R. 99.

Contra B- "■ '^^ 3 N

VOL- I-

&14 Of Neglect and Ill-treatment of the Young, dc. [Book ix.

on indictment or by a Court of summary jurisdiction, notwithstanding that
actual suffering or injury to health, or the likelihood of such suffering or
injury to health, was obviated by the action of another person.

' (3) A person may be convicted of an offence under this section, either
on indictment or by a Court of summary jurisdiction, notwithstanding
the death of the child or young person in respect of whom the offence is
committed (l).

' (4) Upon the trial of any person over the age of sixteen indicted for
the manslaughter of a child or young person of whom he had the custody
charge or care, it shall be lawful for the jury, if they are satisfied that the
accused is guilty of an offence under this section in respect of such child or
young person, to find the accused guilty of such offence ' (m).

In E. V. Connor [1908] 2 K.B. 26, it was held that the mere omisssion
by a father to pay any part of his earnings towards the support of
hid child might constitute wilful neglect within 4 Edw. VII. c. 15, s. 1,
although the child was living with its mother and the father was living
apart from her. In Cole v. Pendleton (60 J.P. 359), where the father was
living with his wife, a similar ruhng was given.

By sub-sect. (5), 'If it is proved that a person convicted under this
section was directly or indirectly interested in any sum of money accruable
or payable in the event of the death of the child or young person, and
had knowledge that such sum of money was accruing or becoming
payable, then

(a) in the case of a conviction on indictment, the Court may in its

discretion either increase the amount of the fine under this

section so that the fine does not exceed two hundred pounds ;

or, in lieu of awarding any other 'penalty under this section,

sentence the person to penal servitude for any term not

exceeding five years (n) ; and

(h) in the case of a summary conviction, the Court in determining the

sentence to be awarded shall take into consideration the fact

that the person was so interested and had such knowledge (o).

' (6) A person shall be deemed to be directly or indirectly interested

in a sum of money under this section, if he has any share in or any benefit

from the payment of that money, though he is not a person to whom it is

legally payable {p).

' (7) A copy of a policy of insurance, certified by an officer or agent of
the insurance company granting the policy, to be a true copy, shall in any
proceedings under this section be prima facie evidence that the child or
young person therein stated to be insured has been in fact so insured, and
that the person in whose favour the policy has been granted is the person
to whom the money thereby insured is legally payable (q).

' (8) An offence under this section is in this part of this Act referred
to as an offence of cruelty."

{I) Taken from 4 Edw. VII., o. 15, s. 1 section is in substance taken from 4

(2). Edw. VII., c. 15, s. 1 (4) ; as to summary

(m) Taken from 4 Edw. VII., o. 15, s. 1 convictions it is new.

(3). (p) Taken from 4 Edw. VII., u. 15, ». 1

(») Nor less than three years. 54 & 55 (5).

Vict. u. 69, s. 1, ante, p. 211. (q) Taken from 4 Edw. VII., c. 15, s. 1 (6)

(o) As to convictions on indictment this substituting ' Section ' for ' Act.'

CHAP.vm.] Of Cruelty to Children. Q15

By sect. 13 (r), ' Where it is proved that the death of an infant under
three years of age was caused by suffocation (not being suffocation caused
by disease or the presence of any foreign body in the throat or air passages
of the infant), whilst the infant was in bed with some other person over
sixteen years of age, and that that other person was at the time of going to
bed under the influence of drink, that other person shall be deemed to have
neglected the infant in a manner Ukely to cause injury to its health within
the meaning of this pkrt of this Act/

Sect. 19 (based on 4 Edw. VII. c. 15, s. 4) provides for the arrest by a
constable for offences under this part of the Act or within Sched. 1, post,
committed in his view or persons who have committed or are reasonably
suspected of having committed such offences if the constable cannot get
their names and addresses or has reasonable ground for believing that they
wiU abscond.

Sect. 20 provides for the detention in a place of safety of children or
young persons against whom such offences have been committed or there
is reason to believe have been committed.

By sect. 21, ' (1) Where a person having the custody charge or care
of a child or young person has been —

(a) convicted of committing in respect of such child or young person

an offence under this part of this Act or any of the offences
mentioned in the First Schedule to this Act ; or

(b) committed for trial for any such offence ; or

person,
by any Court, that Court, either at the time when the person is so con-
victed, committed for trial, or bound over, and without requiring any new
proceedings to be instituted for the purpose, or at any other time, and also
any petty sessional Court before which any person may bring the case,
may, if satisfied on inquiry that it is expedient so to deal with the child
or young person, order that the child or young person be taken out of the
custody, charge, or care of the person so convicted, committed for trial,
or bound over, and be committed to the care of a relative of the child or
young person, or some other fit person, named by the Court (such relative
or other person being willing to undertake such care), until he attains
the age of sixteen years, or for any shorter period, and that Court or any
Court of like jurisdiction may of its own motion, or on the appKcation of
any person, from time to time by order renew, vary, and revoke any
such order (s).

' (2) If the child or young person has a parent or legal guardian no order
shall be made under this section unless the parent or legal guardian has
been convicted of or committed for trial for the offence, or is under
committal for trial for having been, or has been proved to the satisfaction
of the Court making the order to have been, party or privy to the offence,

(r) S. 14 relates to begging. S. 15 relates morals of children, are dealt with post,

to exposing children to risk of burning or pp. 952, 953.

scalding, and specially preserves liability for (s) A re-enactment of 4 Edw. VII., u. 15.

any indictable offence constituted by the s. 6 (1). Apparently no costs can be given

acts referred to in the section. Ss. 16, 17, on varying an order. Re O'Halloran, 70

and 18, which relate to the corruption of the J. P. 8.

3n2

916 Of Neglect and lU-treatment of the Young, &c. tfeooK IX.

or has been bound over to keep the peace towards the child or young
person, or cannot he found (<).

' (3) Every order under this section shall be in writing, and any such
order may be made by the Court in the absence of the child or young
person ; and the consent of any person to undertake the care of a child
or young person in pursuance of any such order shall be proved in such
manner as the Court may think sufficient to bind him.

' (4) Where an order is made under this section in respect of a person
who has been committed for trial, then, if that person is acquitted of the
charge, or if the charge is dismissed for want of prosecution, the order
shall forthwith be void, except with regard to anything that may
have been lawfully done under it (u).

' (7) Nothing in this section shall be construed as preventing the Court,
instead of making an order as respects a child under this section, from
ordering the child to be sent to an industrial school in any case in which
the Court is authorised to do so under Part IV. of this Act {v).

By sect. 22 ' (1) Any person to whose care a child or young person
is committed under this part of this Act shall, whilst the order is in force,
have the like control over the child or young person as if he were his
parent, and shall be responsible for his maintenance, and the child or
young person shall continue in the care of such person, notwithstanding
that he is claimed by his parent or any other person, and if any person
(a) Knowingly assists or induces, directly or indirectly, a child or

young person to escape from the person to whose care he is

so committed ; or
(6) Knowingly harbours, conceals, or prevents from returning to such

person, a child or young person who has so escaped, or

knowingly assists in so doing ;
he shall on summary conviction be liable to a fine not exceeding £20 or
to be imprisoned, with or without hard labour, for any term not exceeding
two months.

' (2) Any Court having power so to commit a child or young person
shall have power to make the like orders on the parent of or other person
liable to maintain the child or young person to contribute to his main-
tenance during such period as aforesaid, and such orders shall be enforce-
able in Uke manner as if the child or young person were ordered to be sent
to a certified school (w) under Part IV. of this Act, but the limit on the
amount of the weekly sum which the parent or such other person may
be required under this section to contribute shall be one pound a week
instead of the limit fixed under Part IV.

' (3) Any such order may be made on the complaint or application of
the person to whose care the child or young person is for the time being
committed, and either at the time when the order for the committal of the
child or young person to his care is made, or subsequently, and the sums

(«) A re-enactment of 4 Edw. VII., o. 15, child or young person.
s. 6 (2) with amendments. {v) Vide ante, pp. 230 et seq.

(u) Sub-ss. 5, 6, empower the Secretary [w) i.e. to an industrial school or refor-

of State to discharge absolutely or on con- matory, see ss. 44 et seq.
ditions, or to authorise emigration of the

CHAP.viiL] Of Cruelty to Children. 917

contributed by the parent or such other person shall be paid to such person
as the Court may name, and be applied for the maintenance of the child
or young person.

' (4) Where an order under this part of this Act to commit a child or
young person to the care of some relative or other person is made in
respect of a person who has been committed for trial for an offence, the
Court shall not have power to make an order under this section on the
parent or other person liable to maintain the child or young person prior
to the trial of the person so committed.

' (5) Any Court making an order under this section for contribution by
a parent or such other person may in any case where there is any pension
or income payable to such parent or other person and capable of being
attached, after giving the person by whom the pension or income is
payable an opportunity of being heard, further order that such part as
the Court may see fit of the pension or income be attached and be paid to
the person named by the Court. Such further order shall be an authority
to the person by whom such pension or other income is payable to make
the payment so ordered, and the receipt of the person to whom the
payment is ordered to be made shall be a good discharge to such first-
mentioned person.

' (6) An order under this section may be made by any Court before
which a person is charged with an offence under this part of this Act, and
without regard to the place in which the person to whom the payment
is ordered to be made may reside ' (x).

By sect. 23 («/), ' (1) In determining on the person to whose care the
child or young person shall be committed under this part of this Act,
the Court shall endeavour to ascertain the religious persuasion to which
the child or young person belongs, and shall, if possible, select a person
of the same rehgious persuasion, or a person who gives such undertaking
as seems to the Court sufficient that the child or young person shall be
brought up in accordance with its own religious persuasion, and such
religious persuasion shall be specified in the order.

' (2) In any case where the child or young person has been placed
pursuant to any such order with a person who is not of the same religious
persuasion as that to which the child or young person belongs, or who
has not given such undertaking as aforesaid, the Court which made the
order, or any Court of like jurisdiction, shall, on the application of
any person in that behalf, and on its appearing that a fit person, who is of
the same rehgious persuasion, or who will give such undertaking as afore-
said, is willing to undertake the care of the child or young person, make
an order to secure his being placed with a person who either is of the same
religious persuasion or gives such undertaking as aforesaid.

' (3) Where a child or young person has been placed with a person who
gives such undertaking as aforesaid, and the undertaking is not observed,
the child or young person shall be deemed to have been placed with a
person Viot of the same religious persuasion as that to which the child
belongs, as if no such undertaking had been given (2).

{x) Except as to the parts in italics a u. 15, s. 8.
re-enactment of 4 Edw. VII., o. 15, s. 7. (2) S. 24 gives power to justices on sworn

(y) This section re-enaets 4 Edw. VII., information to issue warrants to search for

918 Of Neglect and Ill-treatment of the Young, dc. [book ix.

By sect. 26, ' Where it appears to the Court by or before which any
person is convicted of an offence of cruelty, or of any of the offences
mentioned in the First Schedule to this Act, that that person is a parent
of the child or young person in respect of whom the offence was committed,
or is living with the parent of the child or young person, and is a habitual
drunkard within the meaning of the Inebriates Acts, 1879 to 1900 (a),
the Court, in lieu of sentencing that person to imprisonment, may, if
it thinks fit, make an order for his detention in a retreat under the
said Acts, the licensee of which is willing to receive him, for any
period named in the order, not exceeding two years, and the order
shall have the like effect, and copies thereof shall be sent to the
local authority and Secretary of State in like manner, as if it were an
application duly made by that person and duly attested by a justice
under the said Acts : and the Court may order an officer of the Court or
constable to remove that person to the retreat, and on his reception the
said Acts shall have effect as if he had been admitted in pursuance of an
application so made and attested as aforesaid : Provided that —

(a) an order for the detention of a person in a retreat shall not be

made under this section unless that person, having had such
notice as the Court deems sufficient of the intention to allege
habitual drunkenness, consents to the order being made ; and

(b) if the wife or husband of such person, being present at the hearing

of the charge, objects to the order being made, the Court
shall, before making the order, take into consideration any
representation made to it by the wife or husband ; and

may deem reasonably sufficient, be satisfied that provision
will be made for defraying the expenses of such person during
detention in a retreat ; and

(d) nothing in this section shall affect any power of the Court to

order the person convicted to be detained in a certified

inebriate reformatory (b).
Evidence and Procedure. — By sect. 27, ' As respects proceedings against
any person for an offence under this part of this Act, or for any of the
offences mentioned in the First Schedule to this Act, the Criminal
Evidence Act, 1898 (c), shall apply as if in the schedule to that Act a
reference to this part of this Act and to the First Schedule of this Act
were substituted for the reference to the Prevention of Cruelty to
Children Act, 1894 (d).

By sect. 28 ' (1) Where a justice is satisfied by the evidence of a
duly qualified medical practitioner that the attendance before a Court of

children or young persons alleged to have (c) 61 & 61 Vict. c. 36, post Bk. xiii. o. v.

suffered, or to be suffering, ill-treatment, {d) A re-enactment of 4 Edw. VII., u. 15,

or to have been, or to be, subject to the s. 12. On the trial of an indictment

offences mentioned in the first schedule to against a husband and wife upder the

the Act. S. 25 relates to visitation of corresponding section of 57 & 58 Vict. c. 41,

homes for children. it was held that if either of them elected

(a) 42 & 43 Vict. c. 19 ; 51 & 52 Vict, to give evidence, the case as against the

u. 19. Vide ante, p. 244. other was not over until such evidence

(6) A re-enactment of 4 Edw. VII., c, 15, had been heard. R. v. Martin, 17 Cox, 36,

s. 11. Wills, J. See R. u. George, 73 J. P. 11.

CHAP. VIII.] Of Cruelty to Children. 919

any child or young person, in respect of whom an offence under this
part of this Act, or any of the ofiences mentioned in the First Schedule
to this Act, is alleged to have been committed, would involve serious
danger to the life or health of the child or young person, the justice may
take in writing the deposition of the child or young person on oath, and
shall thereupon subscribe the deposition and add thereto a statement of
his reason for taking the deposition, and of the day when and place where
the deposition was taken, and of the names of the persons (if any) present
at the taking thereof.

' (2) The justice taking any such deposition shall transmit it with his
statement —

{a) if the deposition relates to an offence for which any accused
person is already committed for trial, to the proper officer of
the Court for trial at which the accused person has been
committed ; and
(b) in any other case, to the clerk of the peace of the county or
borough in which the deposition has been taken ;
and the clerk of the peace to whom any such deposition is transmitted
shall preserve, file, and record the deposition ' (e).

By sect. 29, ' Where, on the trial of any person on indictment for an
ofEence of cruelty, or any of the ofiences mentioned m the First Schedule
to this Act, the Court is satisfied by the evidence of a duly qualified
medical practitioner that the attendance before the Court of any child
or young person in respect of whom the offence is alleged to have been
committed would involve serious danger to the life or health of the child
or young person, any deposition of the child or young person taken under
the Indictable Offences Act, 1848 (11 & 12 Vict. c. 42) or this part of this
Act, shall be admissible in evidence either for or against the accused
person without further proof thereof —

(a) if it purports to be signed by the justice by or before whom it

purports to be taken ; and

(6) if it is proved that reasonable notice of the intention to take the

deposition has been served upon the person against whom it

is proposed to use it as evidence, and that that person or his

counsel or solicitor had, or might have had if he had chosen to

be present, an opportunity of cross-examining the child or

young person making the deposition (/).

By sect. 30, ' Where, in any proceeding against any person for an

offence under this part of this Act, or for any of the offences mentioned

in the First Schedule to this Act ((jr),-the child in respect of whom the

offence is charged to have been committed, or any other child of tender

years who is tendered as a witness, does not in the opinion of the Court

understand the nature of an oath, the evidence of that child may be

received, though not given upon oath, if, in the opinion of the Court,

the child is possessed of sufficient intelligence to justify the reception of

the evidence, and understands the duty of speaking the truth ; and the

(e) A re-enactment of 4 Edw. VII. c. 15, Darling, J.

s_ i3_ (g) Including indecent assault (24 & 25

' (/') A re-enactment of 4 Edw. VII. c. 15, Vict. o. 100, s. 52), post, pp. 924, 955. R. v.

s. 14. See B. v. Katz, 64 J. P. 807, Paul, 25 Q.B.D. 202, is no longer law.

920 Of Neglect and Til-treatment of the Young, &c. [book ix.

evidence of the child, though not given on oath, but otherwise taken and
reduced into writing in accordance with the provisions of section seventeen
of the Indictable Offences Act, 1848 (11 & 12 Vict. c. 42), or of this part of
this Act, shall be deemed to be a deposition within the meaning of that
section and that part respectively (/t) : —

Provided that — .

(a) A person shall not be liable to be convicted of the oflence unless

the testimony admitted by virtue of this section and given on
behalf of the prosecution is corroborated by some other
material evidence in support thereof implicating the
accused (M) ; and

(b) Any child, whose evidence is received as aforesaid and who

wilfully gives false evidence under such circumstances that,
if the evidence had been given on oath, he would have been
guilty of perjury, shall, subject to the provisions of this Act,
be liable on summary conviction to be adjudged such punish-
ment as might have been awarded had he been charged with
perjury and the case dealt with summarily under section ten
of the Summary Jurisdiction Act, 1879 (i).
By sect. 31, ' Where in any proceedings with relation to an offence
under this part of this Act, or any of the offences mentioned in the First
Schedule to this Act, the Court is satisfied that the attendance before the
Court of any child or young person in respect of whom the offence is
alleged to have been committed is not essential to the just hearing of the
case, the case may be proceeded with and determined in the absence of
the child or young person ' (/).

By sect. 32, ' (1) Where a person is charged with committing an
offence under this part of this Act, or any of the; offences mentioned in
the First Schedule to this Act, in respect of two or more children or
young persons, the same information or summons may charge the offence
in respect of all or any of them, but the person charged shall not be liable
to a separate penalty for each child or young person except upon separate
informations.

' (2) The same information or summons may also charge any person
as having the custody, charge, or care, alternatively or together, and may
charge him with the offences of assault, ill-treatment, neglect, abandon-
ment, or exposure, together or separately, and may charge him with
committing all or any of these offences in a manner likely to cause
unnecessary suffering or injury to health, alternatively or together, but
when those offences are charged together the person charged shall not be
liable to a separate penalty for each (k).

' (3) A person shall not be sunimarily convicted of an offence under
this part of this Act, or of an offence mentioned in the First Schedule
to this Act, unless the offence was wholly or partly committed within six
months before the information was laid ; but, subject as aforesaid,

(h) This part gets rid of the difficulties (j) A re-enactment of 4 Edw. VII. c. 15,

raised by R. v. Pruntey, 16 Cox, 344. s. 16.

{hh) See R. v. Everett, 2 Cr. App. R. 130. {k) As to charging neglect and assault

(i) A re-enaotment of 4 Edw. VII. c. 15, of an imbecile son, see R. v. Watson, 30

9. 15, Jr. L. T. Rep. 135,

CHAP. viiL] Of Cruelty to Children. 921

evidence may be taken of acts constituting, or contributing to constitute,
the offence, and committed at any previous time.

' (4) When an offence under this part of this Act, or any offence
mentioned in the First Schedule to this Act, charged against any person
is a continuous offence, it shall not be necessary to specify in the inform-
ation, summons, or indictment, the date of the acts constituting the
offence ' (Z).

By sect. 33, 'When, in pursuance of this part of this Act, any person
is convicted by a Court of summa,ry jurisdiction of an offence, or when in
the case of any application to a Court of summary jurisdiction under
this part of this Act for an order committing a child or young person to
the care of any person, or for an order for contribution to the maintenance
of a child or young person, any party thereto thinks himself aggrieved
by any order or decision of the Court, he may appeal against such a
conviction, or order, or decision to quarter sessions (m).

By sect. 34 ' (1) A board of guardians may institute any proceedings
under this part of this Act for any offence in relation to a child or young
person and may, out of their common fund, pay the reasonable costs and
expenses of any proceedings so instituted by them (n).

' (2) The like powers of instituting proceedings may, in London, be
also exercised by a local authority for the purposes of Part I of this Act,
and the expenses of such proceedings shall be defrayed as expenses of
the authority under Part I ' (o).

By sect. 35, ' Every misdemeanor under this part of this Act shall be
deemed to be an offence within, and subject to, the provisions of the
Vexatious Indictments Act, 1859 (p), and any Act amending that
Act ' (q).

By sect. 36, ' Section ten of the Poor Law Act, 1879, shall be amended
so as to include in it as one of the associations or societies to which a board
of guardians may, with the consent of the Local Government Board,
subscribe, any society or body corporate for the prevention of cruelty to
children.'

By sect. 37, 'Nothing in this part of this Act shall be construed to take
away or affect the right of any parent, teacher, or other person having
the lawful control or charge of a child or young person to administer
punishment to such child or young person ' (r).

Interpretation. — By sect. 38, ' (1) In this Part of this Act, unless the
context otherwise requires, the expression " fit person," in relation to the
care of any child or young person, includes any society or body corporate
established for the reception or protection of poor children or the
prevention of cruelty to children.

(2) ' For the purposes of this part of this Act —
' Any person who is the parent or legal guardian of a child or young

(I) A re-enactment of 4 Edw. VII. i;. 15, of 4 Edw. VII., o. 15, ». 21. S. 36 extends

s. 18. s. 10 of the Poor Law Act, 1879.
' (m) A re-enactment of 4 Edw. VII. c. 15, (p) 22 & 23 Vict. c. 17, post, Vol. ii.

s. 19. As to costs see 8 Edw. VII. o. 15, p. 1927.
post. Vol. ii. p. 2039. (?) A re-enaotment of 4 Edw. VII. u.

(») As to costs of prosecution and de- 15, s. 25.
fence, vide post. Vol. ii. pp. 2039, 2048. (r) A re-enactment of 4 Edw. VII. u.

(o) 'A re-enactment with modifications 15, s. 28, Vide ante, p. 767.

922 Of Neglect and Ill-treatment of the Young, dc. [book ix.

person, or who is legally liable to maintain a child or young person, shall be
presumed to have the custody of the child or young person, and as
between father and mother the father shall not be deemed to have ceased
to have the custody of the child or young person by reason only that he
has deserted, or otherwise does not reside with, the mother and child or
young person ; and

' Any person to whose charge a child or young person is committed
by any person who has the custody of the child or young
person shall be presumed to have charge of the child or young
person ; and
' Any other person having actual possession or control of a child or
young person shall be presumed to have the care of the child
or young person.

(3) ' This part of this Act shall apply in the place of a child or young
person who has before the commencement of this Act been committed to
the care of a relative or other fit person, bv an order made under the
Prevention of Cruelty to Children Act, 1904' (4 Bdw. VII. c. 15), ' as if the
order had been made under this part of this Act.'

By sect. 123, ' Where a person, whether charged with an offence or
not, is brought before any Court otherwise than for the purpose of giving
evidence, and it appears to the Court that he is a child or young person,
the Court shall make due inquiry as to the age of that person, and for
that purpose shall take such evidence as may be forthcoming at the hearing
of the case, but an order or judgment of the Court shall not be invalidated
by any subsequent proof that the age of that person has not been correctly
stated to the Court, and the age presumed or declared by the Court to be
the age of the person so brought before it shall, for the purposes of this
Act, be deemed to be the true age of that person, and, where it appears
to the Court that the person so brought before it is of the age of sixteen
years or upwards, that person shall for the purposes of this Act be deemed
not to be a child or young person.

' (2) Where in a charge or indictment for an offence under this Act,
or any of the offences mentioned in the First Schedule to this Act, except
an offence under the Criminal Law Amendment Act, 1885 (s), it is alleged
that the person by or in respect of whom the offence was committed was
a child or young person or was under or above any specified age, and he
appears to the Court to have been at the date of the commission of the
alleged offence a child or young person, or to have been under or above
the specified age, as the case may be, he shall for the purposes of this Act
be presumed at that date to have been a child or young person or to have
been under or above that age, as the case may be, unless the contrary
is proved (t).

' (3) Where in any charge or indictment for an offence under this Act
or any of the offences mentioned in the First Schedule to this Act it is
alleged that the person in respect of whom the offence was committed
was a child or was a young person, it shall not be a defence to prove that
the person alleged to have been a child was a young person or the person

(.s) 48 & 49 Vict. u. 69, post, pp. 946 (I) See 4 Edw. VII. c. 15, s. 17. R. v.

et seq. Hale [1905], 1 K.B. 126.

CHAP. VIII.] Of Cruelty to Children. 923

alleged to have been a young person was a child in any case where the
acts constituting the alleged offence would equally have been an offence
if conamitted in respect of a young person or child respectively.

' (4) Where a person is charged with an offence under this Act in respect
of a person apparently under a specified age it shall be a defence to prove
that the person was actually of or over that age.'

By sect. 131, ' For the purposes of this Act unless the context otherwise
requires —

' The expression " child " means a person under the age of fourteen

years (m) ;
' The expression " young person " means a person who is fourteen

years of age or upwards and under the age of sixteen years ;
' The expression " guardian " in relation to a child, young person, or

youthful offender, includes any person who, in the opinion

of the Court having cognisance of any case in relation to the

child, young person, or youthful offender, or in which the child,

young person, or youthful offender is concerned, has for the

time being the charge of or control over the child, young

person, or youthful offender ;
' The expression " legal guardian " in relation to an infant, child,

young person, or youthful offender, means a person appointed,

according to law, to be his guardian by deed or will, or by order

of a Court of competent jurisdiction ;
' The expression "place of safety" means any workhouse or police

station, or any hospital, surgery, or any other suitable place,

the occupier of which is willing temporarily to receive an

infant, child, or young person ;
' The expression " common council " means the mayor, aldermen,

and commons of the City of London in common council

assembled ;
' The expression " local education authority " means a local education

authority for the purpose of Part III. of the Education Act,

1902 ' (2 Edw. Vll. c. 42) ;
' The expressions " police authority " and " poUce fund " as respects

the City of London mean the Common Council and the fund

out of which the expenses of the City police are defrayed,

and elsewhere have the same meanings as in the Police Act,

1890 ' (53 & 54 Vict. c. 45) ;
' The expression " common fund " means, as respects a poor law union

consisting of a single parish, the poor rate of that parish ;
' The expression "street" includes any highway and any public bridge,

road, lane, footway, square, court, alley, or passage,- whether

a thoroughfare or not ;
' The expression " public place " includes any public park, garden, sea

beach, or railway station, and any ground to which the public

for the time being have or are permitted to have access,

whether on payment or otherwise ;

(«) By s. 128 (1) 'fourteen! is substi- Jurisdiction Act, 1879 (42 & 43 Vict,
tuted for 'twelve' in the definition of c. 49), and the first schedule of that Act is
child and young person in the Summary amended.

924 Of Neglect and Ill-treatment of the Young, &g. [book ix.

' The expression ' ' intoxicating liquor " means any fermented, distilled,
or spirituovis liquor which cannot according to any law for
the time being in force be legally sold without a licence from
the Commissioners of Inland Revenue.'

FIRST SCHEDULE.

Any offence under sections twenty-seven («), fifty-five (w), or fifty-
six {x) of the OSences against the Person Act, 1861 (24 & 25 Vict. c. 100),
and any offence against a child or young person under sections five {y)
forty-two, forty-three (z), fifty-two {a), or sixty-two (6) of that Act, or
under the Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69) (c).

Any offence under the Dangerous Performances Acts, 1879 and 1897(d).

Any other offence involving bodily injury to a child or young person (e).

Sect. VI. — Of Offences with Reference to Lunatics.

Besides the general provisions of the criminal law with regard to
crimes irrespective of the mental condition of the person affected by
the crime, there are a number of special enactments punishing offences
with reference to lunatics.

A. Common Law.

The ill-treatment of a lunatic by a person having duties towards him
by status or contract seems at common law to fall within the rule as to
sick or helpless persons (awte,pp. 667, 678) (/). It would seem that to justify
conviction for neglect of a person of unsound mind as for a common
law misdemeanor it is necessary directly to aver and to prove that the
lunatic was under the control and care of the defendant or that the
defendant was under some duty to take care of the lunatic, that the
neglect occurred while the care and control continued, and that the neglect
was of a character to produce serious injury to the health of the lunatic,
and in fact caused such injury {g).

(v) Exposing children, ante, p. 911. R. v. Friend, R. & R. 20,' vide ante,

(to) Abduction, fost; p. 959. p. 907. C. S. G. And see Buchanan o.

(x) Child-stealing, anie, p. 904. Hardy, 18 Q.B.D. 486.

(y) Manslaughter, ante, p. 779. {g) R. v. Pelham, 8 Q.B. 959, where an

(z) Assaults, ante, p. 896. indictment of a mother for neglect of her

(a) Indecent assault, post, p. 955. illegitimate lunatic son was held to be

(6) Infamous crime, post, p. 975. defective. It charged unlawful confine-

(e) See Lord Advocate v. Fraser, 3 to clothe the lunatic and suffering him

Eraser, Justiciary (So.) 67. R. v. Roberts, to be covered with filth, and possession of

18 Cox, 530. sufficient means for properly caring for

(/ ) 'As a person incapable of taking him. Such an offence is now covered by

care of himself through imbecility of mind, 53 & 54 Vict. c. 5, s. 322, post, p. 929. In R. u.

is in contemplation of law in the same Smith, 2 C. & P. 449, Burrough, J.,held that

situation as an infant (R. v. Much Cowarne, it was not an indictable offence in a brother

2 B. & Ad. 861), it would seem that if a to neglect to maintain another brother,

person, who is the parent, or has the actual even though he was an idiot, helpless and

custody of a lunatic, neglects to provide an inmate of the defendant's house. The

for such lunatic, though more than twenty- idiot was bed-ridden and was kept in a

one years of age, whereby his health is dark room without sufficient warmth or

injured, such person would be indictable clothing, and so to keep him was held to be

in the same manner as if the lunatic were a neither an assault nor false imprisonment.

child of such tender years as to be unable See R. v. Marriott, 8 C. & P. 425 Patte-

to provide for and take care of itself. See son, J., ante, p. 678.

CHAP, vili.] Of Offences with Ueference to Lunatics. 925

B. Statutes.

(i.) Criminal Lunatics. — By the Criminal Lunatic Asylums Act,
1860 (23 & 24 Vict. c. 75) s. 13, ' Any superintendent, officer, nurse,
attendant, servant, or other person employed in any asylum for criminal
lunatics, who strikes, wounds, ill-treats, or wilfully neglects any person
confined therein, shall be guilty of a misdemeanor, and shall be subject
to indictment for every such offence, and, on conviction under the indict-
ment, to fine or imprisonment, with or without hard labour, or to both
fine and imprisonment at the discretion of the Court, or to forfeit for
every such offence, on summary conviction thereof before two justices,
any sum not exceeding twenty pounds nor less than two pounds.'

The treatment of criminal lunatics {h) is further regulated by the
Criminal Lunatics Acts of 1838 (1 & 2 Vict. c. 14) & 1884 (47 & 48 Vict,
c. 64) which extends to lunatic prisoners removed from the Colonies or
India (14 & 15 Vict. c. 81 ; 47 & 48 Vict. c. 3).

(ii.) Other Lunatics. — The other statutory offences against lunatics
are for the most part contained in the Lunacy Act, 1890 (53 & 54 Vict.
c. 5). That Act and the Lunacy Act, 1891 (54 & 55 Vict. c. 65) contain
regulations for the care and treatment of lunatics other than criminal
lunatics, and for the licensing of houses for the reception of lunatics.

By sect. 341 of the Act of 1890, ' In this Act if not inconsistent with
the context —

' " Asylum " means an asylum for lunatics provided by a county or

borough, or by a union of counties or boroughs.' . . .
' " Hospital " means any hospital or part of a hospital or other house
or institution not being an asylum where lunatics are received
and supported wholly or partly by voluntary contributions
or by any charitable bequest or gift only applying the excess
of payments by some patients for or towards the support,
provision, or benefit of other patients.' . . .
' " Institution for lunatics " means an asylum, hospital, or licensed

house' (i). . . .
' "Lunatic " means an idiot or person of unsound mind ' (j). . . .
' " Manager " in relation to an institution for lunatics, means the
superintendent of an asylum, the resident medical officer or
superintendent of a hospital, and the resident licensee of a
licensed house.'
By sect. 7 (4), ' If after a petition ' (for a reception order) ' has been
dismissed, another petition is presented as to the same alleged lunatic, the
person presenting such other petition, so far as he has any knowledge or
information with reference to the previous petition and its dismissal, shall
state the facts relating thereto in his petition, and shall obtain from the

{h) Defined in s. 16 of the Act of 1884 the judge in lunacy extended (s. 116). In

for the purposes of that Act. R. v. Shaw, L. R. 1 C. C. R. 145, it was held

(i) Licensed houses are governed by that imbecility and loss of mental power,

ss. 207-229 of the Act: 'workhouses' whether arising from natural decay or from

are governed by ss. 24-27 of the Act of 1890 paralysis, softening of the brain, or other

and by ss. 4, 6, 19 of the Act of 1891 (54 natural cause, and although unaccompanied

& 55 Vict. c. 65). by frenzy or delusion, constituted unsound-

(j) Vide ante, pp. 64 et seq. The defini- ness of mind within 8 & 9 Vict. c. 100, of

tion is for purposes of management and which the Act of 1890 is to a large extent

control of persons and their property by a re-enactment.

926 Of Neglect and Ill-treatment of the Young, Sc. tSOOK IX.

commissioners at his own expense, and present with the petition a copy of
the statement sent to them of the reasons for dismissing the previous
petition, and if he wilfully omits to comply with this subsection he shall
be guilty of a misdemeanor/

By sect. 8, provision is made for the right of a lunatic received as a
private patient to be examined by a judicial authority, and for notice
bein g given of his reception , and for notice to the patient of his right to have
an interview with the judicial authority and give him an opportunity
of making a request for interview and transmitting it when made, and
producing the certificate on which the patient was received. By sub-
sect. 5, ' If any manager of an institution for lunatics, or any person
having charge of a single patient, omits to perform any duty imposed
upon him by this section he shall be guilty of a misdemeanor.'

By sect. 38 (7), ' The manager of any institution for lunatics and any
person having charge of a single patient, who detains a patient (k) after
he has knowledge that the order for his reception (Z) has expired shall
be guilty of a misdemeanor.'

By sect. 40 (1), ' Mechanical means (m) of bodily restraint shall not
be applied to any lunatic unless the restraint is necessary for the purposes
of surgical or medical treatment, or to prevent the lunatic from injuring
himself or others ' in which case a certificate of the grounds for using
such restraint shall be given (sub-sects. 2, 3), and a record of it shall be
kept and transmitted to the commissioners quarterly (sub-sects. 4, 5).
By sub-sect. 7, ' Any person who wilfully acts in contravention of this
section shall be guilty of a misdemeanor.'

By sect. 44 (4), ' If any person having charge of a single patient fails
to give effect to any direction of the commissioners under this sect.' (as
to visits by a medical practitioner) ' he shall be guilty of a misdemeanor.'

By sect. 76 (2), ' Any person who has been duly served with any
such order of discharge (n), and detains a patient after the date of discharge
appointed thereby, shall be guilty of a misdemeanor' (o).

By sect. 158 (3), ' Any disqualified person {f) continuing to act (as
commissioner or secretary or clerk to the commissioners) shall be guilty
of a misdemeanor.'

By sect. 177 (5), ' Any disqualified person {q) continuing to act' (as
visitor or clerk or assistant clerk to any visitor) ' shall be guilty of a
misdemeanor.'

Concealment of Buildings, Persons, or Facts from Official Visitors. —
By sect. 195 (2), ' Every manager of a hospital or licensed house (r) who

(k) This enactment does not apply to (o) The detention may perhaps be

lunatics so found by inquisition. S. 38 (10). justified at common law, if necessary for his

(I) As to the requirements and duration safety or the safety of others. See Brook-

of reception orders see ss. 28-37. shaw o. Hopkins, LofEt, 243. Symm v.

(m) By ' such instruments and appU- Fraser, 3 P. & F. 328.

anoes as the commissioners by regulations (p) The disqualification is, to be, or to

to be made from time to time shall deter- have been, within one year prior to appoint-

mine.' S. 40 (6) The regulations in force ment, interested in a house licensed for

are dated April 17, 1895 (Stat R. & 0. lunatics. S. 158 (1).

1895 No. 212.) (q) The disqualification is to be, or be-

(») By the commissioners who, on mak- come, or to have been within one year prior

ing such order must forthwith serve it on to appointment interested in -such licensed

the manager of the institution or the person house. S. 171 (3) (4).

having charge of a single patient. S. 70 (1). (r) These words are defined in s. 341.

CHAP, vm.] Of Offences with Reference to Lunatics. 927

conceals or attempts to conceal or refuses or wilfully neglects to show
any part of the building, or any building communicating therewith or
detached therefrom but not separated as aforesaid (.?) or any part of the
ground or appurtenances held, used, or occupied therewith, or any
person detained or being therein, from any one or more of the visiting
commissioners or visitors, or from any person authorised under this
Act to visit and inspect the hospital or house, or the patients therein
or any of them, or who does not give full and true answers to the
best of his knowledge to all questions which any visiting commis-
sioner or visitor asks in the execution of his office, shall be guilty of a
misdemeanor.'

By sect. 200 (2), ' If the person having charge of a single patient
refuses to shew to any commissioner, at his request, any part of the house
wherein the single patient resides, or any part of the grounds belonging
thereto, he shall be guilty of a misdemeanor.'

By sect. 214, ' If any person, for the purpose of obtaining a licence
or the renewal of a licence for a house for the reception of lunatics,
wilfully supplies to the commissioners or justices any untrue or incorrect
information, plan, description, statement, or notice, he shall be guilty of
a misdemeanor.'

By sect. 222, ' If after the lapse of two months from the expiration
or revocation of the licence of any house, there are in the house two or
more lunatics, every person keeping the house or having the care or
charge of lunatics therein, shall be guilty of a misdemeanor.'

By sect. 231 (10), ' The superintendent of any hospital ' {ante,]). 925),
' who receives or detains any lunatic in the hospital contrary to the
provisions of this Act or to the terms of the complete certificate of
registration, shall be guilty of a misdemeanor.'

By sect. 233 (2), ' If the superintendent of a registered hospital know-
ingly permits any lunatic to be detained or lodged in any building not
shewn on the plans of the hospital sent to the commissioners, he shall
be deemed guilty of a misdemeanor.'

By sect. 237 (4), ' If any lunatics are detained or kept in the
hospital (t) after the date appointed by the order for closing the hospital,
the superintendent of the hospital shall be guilty of a misdemeanor.'

By sect. 315 (1), ' Every person who, except under the provisions of
this Act, receives or detains a lunatic (m), or alleged lunatic (v), in an
institution for lunatics, or for pajnnent (w) takes charge of, receives to
board or lodge, or detains a lunatic or alleged lunatic in an unlicensed
house, shall be guilty of a misdemeanor, and in the latter case shall also
be liable to a penalty not exceeding fifty pounds.

(s) By ground belonging to any other (v) As to the meaning of lunatic see

person. S. 194 (1). B. v. Shaw, L. R. 1 C. C. R. 145, ante,

(t) i.e. a registered hospital which the p. 925, note (»).

commissioners have ordered to be closed {w) The former Act (8 & 9 Vict. c. 100),

under s. 237 sub-s. 1-3. s. 90 had the words ' for profit.' Under

(u) i.e. as a lunatic and to be subjected those words if the payment made was not

to treatment ejmdem generis with that high enough to give a profit the defendant

given to lunatics in public asylums. R. v. might have been entitled to acquittal.

Bishop, 5 Q.B.D. 259. R. v. Sharrard See R u. Vollan [1872], 28th Rep. of Lunacy

[1894], noted in Wood-Renton on Lunacy, Commissioners, 73.
674, 675.

928 Of Neglect and Ill-treatment of the Young, &c. [Book ix.

' (2) Except under the provisions of this Act, it shall not be lawful
for any person to receive or detain two or more lunatics in any house
unless the house is an institution for lunatics or workhouse.

' (3) Any person who receives or detains two or more lunatics in any
house, except as aforesaid, shall be guilty of a misdemeanor ' {x).

By sect. 316, ' The manager of any hospital or licensed house, and
any person having charge of a single patient who omits to send to the
commissioners the prescribed documents and information upon the
admission of a patient, or to make the prescribed entries, and give the
prescribed notices upon the removal, discharge, or death of a patient,
shall be guilty of a misdemeanor, and in the case of a single patient shall
also be liable to a penalty not exceeding fifty pounds ' {y).

By sect. 317 (1), ' Any person who makes a wilful misstatement of
any material fact in any petition, statement of particulars, or reception
order under this Act, shall be guilty of a misdemeanor.

' (2) Any person who makes a wilful misstatement of any material
fact in any medical or other certificate, or in any statement or report of
bodily or mental condition under this Act, shall be guilty of a misdemeanor.

' (3) A prosecution for a misdemeanor under this section shall not
take place except by order of the commissioners, or by the direction of
the Attorney-General or the Director of Public Prosecutions ' {z).

By sect. 318, ' Any person who in any book, statement, or return
knowingly makes any false entry as to any matter as to which he is by this
Act or any rules made under this Act required to make any entry shall
be guilty of a misdemeanor ' {a).

By sect. 319, ' If the manager of an institution for lunatics, or the
person having charge of a single patient, omits to send to the coroner
notice of the death of a lunatic within the prescribed time (6), he shall be
guilty of a misdemeanor.'

By sect. 321 (1), 'Any person who obstructs any Commissioner, or
Chancery or other visitor, in the exercise of the powers conferred by this
or any other Act, shall for each offence be liable to a penalty not
exceeding fifty pounds, and shall also be guilty of a misdemeanor.

' (2), Any person who wilfully obstructs any other person authorised
under this Act by an order in writing under the hand of the Lord Chan-
cellor, or a Secretary of State, to visit and examine any lunatic or supposed
lunatic, or to inspect or inquire into the state of any institution for lunatics,
gaol, or place wherein any lunatic or person represented to be a lunatic
is confined or alleged to be confined, in the execution of such order, and
any person who wiLfuUy obstructs any person authorised under this Act
by any order of the commissioners to make any visit and examination
or inquiry, in the execution of such order, shall (without prejudice to any

(x) It was decided on the corresponding poor-law union under this section, see Wood-
section (44) of 8 & 9 Viot. u. 100 to be no Renton, Lunacy, 676.
defence that the person so receiving the (z) As to this office, vide post, Vol. ii.
lunatics honestly and reasonably believed p. 1924.

that they were not lunatics. R. v. Bishop, {a) For form of indictment see 5 C!ox,

5 Q.B.D. 259. The ground of decision Appendix.

was that having regard to the scope and (6) Within forty-eight hours of the death,

object of the enactment the word 'know- Rules of 1895, r. 27 (St. R. & 0. 1895,

ingly ' should not be imported into it. No. 281).

{y) As to the liability of the clerk of a

CHAP. VIII.] Of Offences with Reference to Imnatics. 929

proceedings, and in addition to any punishment to which such person
obstructing the execution of such order would otherwise be subject) be
liable for every such oiience to a penalty not exceeding twenty pounds.'
By sect. 322, ' If any manager, officer, nurse, attendant, servant, or
other person employed in an institution for lunatics, or any person having
charge of a lunatic, whether by reason of any contract, or of any tie of
relationship, or marriage, or otherwise (c) ill-treats or wilfully neglects a
patient, he shall be guilty of a misdemeanor, and, on conviction on
indictment, shall be liable to fine or imprisonment, or to both fine and
imprisonment at the discretion of the Court, or be Uable on summary
conviction for every offence to a penalty not exceeding twenty pounds,
nor less than two pounds.'

Sect. 324. Carnal knowledge of female lunatics by officials, &c.
Vide post, p. 947.

Prosecution and Procedure. — By sect. 325 (1), ' Except as by this Act
otherwise provided, proceedings against any persons for offences against
this Act may be taken —

' (a) By the secretary of the commissioners upon their order for
any offence ;

' (b) By the clerk of the visitors of any licensed house for an offence
committed within their jurisdiction ;

' (c) By the clerk of the visiting committee of an asylum for any
offence by any person employed therein.

' And such proceedings shall not abate by the death or removal of the
prosecuting secretary or clerk, but the same may be continued by his
successor, and in any such proceedings the prosecuting secretary or clerk
shall be competent to be a witness.

' (2) Except as by this Act otherwise provided, it shall not be lawful
to take such proceedings except by order of the commissioners, or of visitors
having jurisdiction in the place where the offence was committed {d), or
with the consent of the Attorney-General or Solicitor- General.'

By sect. 328, 'A Secretary of State on the report of the com-
missioners or visitors of any institution for lunatics may direct the
Attorney-General to prosecute on the part of the Crown any person
alleged to have committed a misdemeanor under this Act.'

Evidence. — By sect. 329 (1), ' Where any person is proceeded a.gainst
under this Act, on any charge of omitting to transmit or send any copy,
list, notice, statement, report, or other document required to be trans-
mitted or sent by such person, the burden of proof that the same was

(c) In B. V. Rundle, Dears. 482, it was Bundle seems to have been virtually over-
held that 16 & 17 Vict. o. 96, s. 9 did not ruled. In the latter case it was held that
cover the case of a husband ill-treating his . parents had been properly convicted of ill-
lunatio wife. In B. v. Porter, 33 L. J. M. C. treating a lunatic daughter. The words
126: 9 Cox, 449, it was held that persons itaUoised in the present enactment seem
who voluntarily undertook the charge of a to make it clear that it applies to all cases
lunatic were within that Act. In B. v. of persons ill-treating lunatics in their
Smith [1880], 15 Cox, 399 (0. C. R.), the two charge. As to what is ill-treatment see
brothers of a lunatic were held liable under Wood-Benton, Lunacy, 681, 682.
that enactment for ill-treatment of a {d) In certain cases the time for prose-
lunatic sister who lived with them, though cution may be Umited by the Public Authori-
they received no payment for or on account ties Protection Act, 1893 (56 & 57 Vict,
of any special charge of her. In Buchanan u. 61).
V. Hardy [1890], 18 Q.B.D. 486, B. v.

VOL. I. 3 0

930 Of Neglect and Ill-treatment of the Young, <&c. [book ix.

transmitted or sent within the time required shall lie upon such person :
but if he proves by the testimony of one witness upon oath that the copy,
list, notice, statement, report, or document in respect of which the pro-
ceeding is taken, was properly addressed and put into the post in due
time or (in case of documents required to be sent to the commissioners,
or a cierk of the peace, or a clerk to guardians) left at the office of the
commissioners, or of the clerk of the peace, or clerk to the guardians,
such proof shall be a bar to all further proceedings in respect of such
charge (e).

' (2) In proceedings under this Act where a question arises whether
a house is or is not a licensed house or registered as a hospital, it shall be
presumed not to be so licensed or registered unless the licence or certificate
of registration is produced, or sufficient evidence is given that a licence
or certificate is in force ' (e).

A lunatic may be received as a witness on any criminal charge if
the Court considers him rational enough to be a competent witness (/).

Punishment. — The punishment for the above statutory misdemeanors
is by fine or imprisonment without hard labour unless another punish-
ment is prescribed by the enactment creating the offence (gr).

(e) Under 8 & 9 Vict. o. 100 there was produced them,

some doubt as to the burden of proof (/) See R. u. Hill, 2 Den. 254; 20 L. J.

in such cases. E. v. Harris, 10 Cox, 541. M. C. 222.

There notice to produce the documents had (g) Vide ante, p. 249.
been given to the defendant, and he had not

( 930a )

CANADIAN NOTES.

Sec. 2. — Ill-treatment of Apprentices and Servants. — Code see. 243.

Punishment. — Code see. 244.

This section was adopted from the Imperial Statute 24-44 Vict.
eh. 100, sec. 26. The gist of the offence was the wilfully and with-
out lawful excuse refusing or neglecting to provide. E. v. Nasmith,
42 U.C.Q.B. 242. The words of the Code constitute a mere omission an
offence, if without lawful excuse.

This section does not impose .a criminal responsibility upon the
master to provide the servant with medical attendance or medicine.
R. V. Coventry, 3 Can. Cr. Cas. 541.

The reason for the restriction (to those under sixteen) is, that
adults may, if not provided with proper nourishment, remonstrate,
and, if necessary, leave the service. R. v. Nasmith, 42 U.C.Q.B. 242.

In a case before the Code where a young farm-hand fifteen years
of age died from gangrene resulting from frost-bites through ex-
posure and neglect which the master could have obviated, it was held
that, in view of the age of the deceased, the circumstances of the coun-
try, the fact of there being no provision for maintaining poor people,
it was the duty of the prisoner, as .a master towards the deceased as his
servant, to have taken care of him, and that by his omission to do so
he was guilty of gross negligence, to which the lad's death was
attributable, and that, therefore, the prisoner was guilty of man-
slaughter. R. V. Brown (1893), 1 Terr. L.R. 475.

Causing Bodily Harm to Apprentices or Servants. — Code sec. 249.

A verdict for common assault is maintainable upon an indictment
under this section. R. v. Bissonnette (1879), Ramsay's Cases (Que.)
190.

It is purely a question of fact whether the acts proved shew that
the health is likely to be permanently injured; and the words "per-
manently injured" have no technical meaning as here used. R. v.
Bowman (1898), 3 Can. Cr. Cas. 410.

Sec. 5. — Of Cruelty to Children.

Duty of Head of Family to Provide Necessaries. — Code sec. 242.
Punishment. — Code sec. 244.
Abandoning. — Code sec. 245.

Head of Family. — A person who engages the services of a child
under sixteen years, placed out with him by his legal guardian under

930& Duty to Provide Necessaries. [book ix.

a contract for the child's services for a fixed period, whereby the
party with whom he is placed engages to furnish the child with board,
lodging, clothing, and necessaries, is not as to such child a ' ' guardian
or head of a family" so as to become criminally responsible as such,
under section 242, for omitting to provide "necessaries" to such
child while a member of his household. The relationship in such case
is that of master and servant, and comes within the provisions of sec.
243, under which the master is criminally responsible only in respect
of a failure to provide ' ' necessary food, clothing, or lodging. " E. v.
Coventry, 3 Can. Cr. Cas. 541.

Without Laivful Excuse. — It must be shewn that the parent or
guardian was in the actual possession of means to provide for the child.
R. V. Robinson (1897), 1 Can. Cr. Cas. 28.

Permanently Injured. — It is purely a question of fact whether the
acts proved are such that the health of the person is likely to be per-
manently injured by reason thereof; and the words "permanently
injured," as here iised, have no technical meaning. R. v. Bowman
(1898), 3 Can. Cr. Cas. 410 (N.S.).

Where a child's toes were so badly frozen, through the neglect of
the person in whose charge the child was, that they had to be ampu-
tated, it was held in the Territories that the Court should not without
expert evidence upon the effect of the loss of the toes infer that the
child's health had thereby been or was likely to be permanently in-
jured, or that his life had thereby been endangered. R. v. Coventry,
3 Can. Cr. Cas. 541.

Sec. 6. — Of Offences with Reference to Lunatics.

Duty of Person in Charge of Lunatics to Provide Necessaries of
Life. — Code sec. 241.

Punishment. — Code sec. 244.

Preservation of Life. — Sections 241 and 242 appear in the Code
under the heading of "Duties Tending to the Preservation of Life."
As such headings have the same effect as preambles to statutes, the
terms "necessaries of life," and "necessaries" which occur in the
respective sections, mean, when read in connection with the heading
mentioned, such necessaries as tend to preserve life, and not necessar-
ies in their ordinary legal sense. R. v. Brooks (1902), 5 Can. Cr. Cas.
372, 9 B.C.R. 13.

(931 )

CH/^PTBR THE NINTH.
Of Rape, and of the Defilement or Corruption of Females.

Sect. I.— Of Rape.

The definition of the crime of rape depends wholly on the common law
as explained by judicial decisions. The crime consists in having unlawful
carnal knowledge of a woman without her consent {a), i.e . her free
and conscious permission (b). It is therefore an aggravated form of
assault {bb). The older definitions described the offence as committed
with violence, but as will be presently stated it is not necessary in aU
cases to prove actual violence.

This offence does not appear to have been regarded as equally heinous
at all periods of our history. Anciently, indeed, it appears to have
been punishable with death ; but this was afterwards thought too hard ;
and in its stead, another severe but not capital punishment was inflicted
by William the Conqueror, namely, castration and loss of eyes, which
continued till after Bracton wrote, in the reign of Henry III. (c). The
punishment for rape was still further mitigated, in the reign of Edward
I., by the Statute of Westm. 1, 3 Edw. I. c. 13 (d), which reduced the
offence to a trespass, and subjected the party to two years' imprisonment,
and a fine at the King's will. This lenity, however, is said to have been
productive of terrible consequences ; and it was, therefore, found neces-
sary, by 13 Edw. I. (stat. Westm. sec.) c. 34 (e), to make punishable by
judgment of life and member the ravishing of a woman, whether married,
maid or other, where she did not consent, neither before or after. The
punishment was still further enhanced by 18 Eliz. c. 7, s. 1 (/). These
statutes were repealed and superseded by 9 Geo. IV. c. 31 (E.) & 10 Geo. IV.
c. 34 (I.). And by 24 & 25 Vict. c. 100, s. 48 (g), ' Whosoever shall be
convicted of the crime of rape shall be guilty of felony, and being convicted
thereof shall be hable ... to be kept in penal servitude for life . . ' (h)

(a) 1 Hawk c 41, s. 2. 1 Hale, 627, Geo. IV. u. 31), as to Ireland in 1829 (10
628 Co Litt 123 b. 2 Co. Inst. 180. 3 Geo. IV. c. 34).

Co Inst 60 4 Bl. Com. 210. 1 East, P.C. (e) Repealed as to England in 1828. as

434 Steph Die Cr. L. (6th ed.) art. 270. to Ireland in 1829 by the statutes specified
The' line between rape and abduction was in note (d). In B. v. Fletcher, Bell, 63,
nnt di^tinpt in the early stages of the this Act was referred to as bemg m force.
Fnllish cnUnal law. 2 Pollock and (/) Repealed in 1828 (9 Geo. IV. c. 31).

English °n°"°^' 'T„^ 488 489. See (g) A re-enactment of 9 Geo. IV. c. 31,

rfc^^'mp^-l Den.^89: Jp. 934. s fm and 10 Geo. IV c. 19 (I) as modi-

lh\ P / T) 934 ^'^ by 4 & 5 Vict. u. 5b, s. S.

;?L q!!' T! ,, ' Page, 3 Dyer, 404 a. {h) The words omitted were repealed in

7-?^^ R 683 for a con;iction of assault 1892 (S. L. R.). By 54 & 55_Vict. c. 69, s
73 B.R. t"?^' J°\ "^ 1, ante, pp. 211, 212, the minimum term of

after acquit_^ 211 1 Hawk. o. 41, s. penal servitude is three years and imprison-
1 H le 627 Bract, lib. 3, c. 28. ment (with or without hard labour) for not
T r 1 i 'l 19' Wilk. Leg. Anglo-Sax. over two years may be substituted. As to
222' 290 '2 Pollock and Maitland, 489. recognisances, vide ante, p. 218.

id) Repealed as to England in 1828 (9

o 0 ^

932 Of Defilement or Corruption of Females, [book ix.

As to the punishment of principals in the second degree and accessories
before and after the fact see 24 & 25 Vict. c. 94, & 24 & 25 Vict. c. 100,
s. 67, ante, pp. 130, 133.

An indictment for rape may be prosecuted at any time, and notwith-
standing any subsequent assent of the woman alleged to have been
ravished (i).

All who are present, aiding and assisting a man to commit a rape, are
principal offenders in the second degree, whether they be men or women (/).

Capacity. — The law presumes absolutely that a boy under the age of
fourteen years is unable to commit the crime of rape ; and, therefore,
he cannot be guilty of it (k) ; or of an assault with intent to commit a
rape (f) ; and if he be under fourteen no evidence is admissible to
shew that he was in fact physically capable of sexual intercourse (m).
This presumption, however, proceeds upon the grounds of impotency,
rather than the want of discretion ; and such infant may, therefore, be
a principal in the second degree, as aiding and assisting in this offence,
as well as in other felonies, if it appear, by sufficient circumstances, that
he had a mischievous discretion (n).

There are conflicting dicta as to whether a male under fourteen can
be convicted of an attempt to commit rape (o).

But it seems to be clear that a boy under fourteen may, on evidence
which would warrant a conviction of an older male of rape be convicted
of indecent assault (p) or simple assault (q).

It is said (r) that a husband cannot be guilty as a principal in the
first degree of a rape on his wife, on account of the matrimonial consent
which she has given and which she cannot retract. As to the correctness
of this opinion there is some difference of judicial opinion.

In E. V. Clarence (s). Wills, J., said, ' If intercourse under the circum-
stances now in question constitutes an assault on the part of the man, it
must constitute rape, unless indeed between married persons rape is
impossible, a proposition as to which I certainly am not prepared to
assent, and for which there seems to be no sufficient authority ' (t). But
Hale's view was accepted by A. L. Smith, J. (p. 37), Stephen, J. (p. 46),

{») 1 Hale, 631 & 632. 1 East, P. C. (o) E. v. Waite, ubi supra.

446. But delay in prosecution or failure (p) See R. v. Williams [1893], 1 Q.B.

to make complaint on the earliest oppor- 320.

tunity affords strong presumptive evidence (q) R. v. Brimilow, ttii supra. R. v.

of consent. See R. v. Osborne [1905], Waite, vhi supra. In R. v. Angus [1907],

1 K.B. 551, post, p. 944. 24 N. Z. L. R. 948, where the above cases

(j) R. V. Vide, Fitz. Corone, pi. 86. 1 are fully discussed, it was held as stated in

Hawk. c. 41, s. 10. Lord Baltimore's the text above, the Court observing that

case, 4 Burr. 2179. 1 Hale, 628, 633. an act of indecency may be independent

1 East, P. C. 435. R. v. Burgess, Trin. T. of sex.

1813, post, p. 939. (r) 1 Hale, 630.

{Ic) 1 Hale, 630. R. v. Brimilow, 2 Mood. (s) [1888] 22 Q.B.D. 23. In that case

122. R. V. Groombridge, 7 C. & P. 582, a husband was indicted for an assault on

Gaselee, J., and Abinger, C.B. See R. v. his wife causing grievous bodily harm,

Waite [1892], 2 Q.B. 600, post, p. 932. and the evidence was that he knowing that

(I) R. V. Eldershaw, 3 C. & P. 396, he was infected with a venereal disease

Vaughan, B. R. v. Philips, 8 C. & P. 736, (of which she was ignorant) he carnally

Patteson, J. See ante, p. 60. knew her with her consent and infected

(m) R. V. Philips, 8 C. & P. 736, Patte- her with the disease,

son, J. R. V. Jordan, 9 C. & P. 118, Wil- (t) Opinions to the same effect were

Jiams, J. expressed by Field, J. (p. 57).

in) 1 Hale, 620.

CHAP. IX.] Of Rape. 933

and Hawkins, J. (p. 51). The last-named judge said that, ' the inter-
course which takes place between husband and wife is not by virtue of
any special consent on her part, but is mere submission to an obhgation
imposed on her by law. Consent is immaterial.' Upon this opinion he
came to the conclusion that the act of the husband was not the less an
assault because of the submission of the wife (m).

A husband may be guilty as a principal in the second degree to a rape
on his wife by assisting another person to commit a rape upon her,
for though in marriage the wife has given up her body to her husband,
she is not by him to be prostituted to another (v) : and a woman may be
convicted as a principal in the second degree or as an accessory before the
fact to a rape on another woman (w).

Carnal Knowledge. — There must be penetratio, or res in re in order to
constitute the ' carnal knowledge,' which is a necessary part of the
offences dealt with in this chapter (x). But a very slight penetration is
sufficient {y). Thus in E. v. Eussen (2), it was proved on behalf of a
prisoner, who was charged with having ravished a young girl, that the
passage of her parts was so narrow that a finger could not be introduced ;
and that the membrane called the hymen, which crosses the vagina, and
is an indubitable mark of virginity, was perfectly whole and unbroken ;
but it was admitted that the hymen is in some cases an inch, and in others
an inch and a half, beyond the orifice of the vagina (a). Ashhurst, J.,
left it to the jury to say whether any penetration were proved : and
the judges afterwards held, upon a conference (De Grey, C.J., and Eyre,
B., being absent), that this direction was perfectly right ; and that the
least degree of penetration is sufiicient, though it may not be attended
with the deprivation of the marks of virginity.

It is not essential to prove rupture of the hymen (b), but absence of
evidence of rupture of the hymen makes it necessary to caution the jury
to be careful about convicting of the complete offence (c).

By 24 & 25 Vict. c. 100, s. 63, ' Whenever, upon the trial for any offence
punishable under this Act, it may be necessary to prove carnal knowledge,
it shall not be necessary to prove the actual emission of seed in order to

(m) Bishop, Amer. Cr. L. vol. ii. ». 72 (b) 2 102), and Dr. Paris (1 Par. & Fonb. Med.

expresses his concurrence with the minority Jur. 203), in which the hymen was entire

of the judges. during the pregnancy of the party, and in one

(v) Lord Castlehaven'a case [1631], 3 St. case was obliged to be divided by a surgical

Tr. 402. 1 Hale, 629. Hutt. 116. 1 Str. operation at the time of the accouchement.

633. With respect to the second proposition

(w) R. V. Ram, 17 Cox, 609, 610n. ; cf. there may be some doubt, as in all the

Lord Baltimore's case [1768], 4 Burr. 2179. preparations in the museum of the Royal

(x) 1 Hale, 628. 3 Co. Inst. 59, 60. 1 College of Surgeons, in which the hymen is

Hawk. c. 41, 3. 3. Sum. 117. 1 East, shewn, it is not more than a quarter of an

P. C. 437. R. V. Page, 3 Dy. 304, a. in inch from the orifice of the vagina.' See

marg. : 73 E.R. 683 : Cro. Car. 332. Taylor, Med. Jurisp. (5th ed.), vol. ii. pp.

(y) See R. v. Lines, 1 C. & K. 393, Parke, 31 et seq., 112.

B. (6) R. V. Hughes, 9 C. & P. 752 (all the

(z) 0. B. Oct. 1777. Serjt. Forster's judges) accepting R. v. Russen as good law.

MS. 1 East, P. C. 439. MS. Bayley, J. R. v. Jordan, ibid. 118, WilUams, J. The

(a) Upon this statement the reporters, in ruling in R. v. Gammon, 5 C. & P. 321, to

a note to R. v. Hughes, 9 C. & P. 752, ob- the contrary is not good law.

serve, ' The first proposition appears to be (c) R. v. McRue, 8 C. & P. 641,

much too strongly put, as several cases are Bosanquet, J.
mentioned by Dr. Davis (Elem. of Midw.

934 Of Defilement or Corruption of Females, [book ix.

constitute a carnal knowledge, but the carnal knowledge shall be deemed
complete upon proof of penetration only (d). A person may be convicted
of rape, even if the fact of emission is negatived by the evidence (e).

Consent. — If a man has connection with a woman who is in a state
of insensibility, knowing her to be in such state, he is guilty of rape,
as the offence of rape is ravishing a woman where she did not consent (/),
and not ravishing her against her will {g). Thus a man is guilty of a
rape if he has connection with a woman when she is asleep, he knowing
her to be so (h).

Where upon an indictment for rape the prosecutrix, a girl of thirteen,
stated that she usually slept with the prisoner (her father) and having
gone to sleep by his side, on awaking she found him having connection
with her ; the prisoner had had connection with her before, but she had
never complained to anyone, nor would she of her own accord now, and
a woman, who saw them together on the bed on the occasion in question,
stated that the girl appeared to lie quiet for a moment while the prisoner
was upon her, but on seeing the witness she immediately attempted to
push him off. Coleridge, J., told the jury, ' The question is, was she a
consenting party ? and you cannot doubt, after the evidence you have
heard, that, although not in a state to give consent when the connection
began, she betrayed no disposition to resistance when she might have
done so, and that, too, before the connection was at an end. She had
been so treated before without complaining, nor would she, from her own
statement, have complained now. I think, therefore, there is not such
an absence of consent throughout as to justify a conviction of rape' (?').

A consent or submission obtained by fraud is, it would seem, not a
defence to a charge of rape or cognate offences.

By the concluding clause of sect. 4 of the Criminal Law Amendment
Act, 1885 (48 & 49 Vict. c. 69), ' Whereas doubts (/) have been entertained

(d) Taken from 9 Geo. IV. c. 31, s. 18 (E) exciting her. As to strangling or drugging
and 10 Geo. IV. c. 34, s. 21 (I). As to the with intent to make such oflEenoe possible,
reason for passing these enactments see R. see 24 & 25 Vict. c. 100, ss. 21 & 22, ante,
V. Allen, 9 C. & P. 31, Tindal, C.J. Before p. 863.

these enactments there were great authori- {g) R. v. Fletcher, Bell, 63, 71 ; 28 L. J.

ties to shew that there need not have been M. C. 85, after full discussion of all the

emissio seminis in order to constitute a authorities. As to rape on imbecile females

rape. 1 Hale, 628. 1 East, P. C. 438. see post, p. 946.

R. V. Blomfield, 1 East, P. 0. ibid. R. v. (h) R. u Mayers, 12 Cox, 311, Lush,

Sheridan, ibid. Fost. 274. See also R. v. J. In R. v. Young [1878], 14 Cox, 114,

Reekspear, 1 Mood. 342. R. v. Cozens, 6 it was held rape carnally to know a married

C. & P. 351. R. V. Brooks, 2 Lew. 267. woman when she was asleep. She woke

R. V. Jennings, 4 C. & P. 249, 1 Lew. 290. up and when she found that the man was

But this was doubtful, and there were not her husband flung him off and cried

many authorities to the contrary, 12 Co. out.

Rep. 37 : Sum. 117. Staundf. 44. 1 Hawk. (i) R. v. Page, 2 Cox, 133.

c. 4, s. 2 ; c. 41, s. 3. 1 East, P. C. 437, (j) The doubts referred to arose out of

438, 439, 440. R. v. Flemming, 2 Leach, the conflicting decisions in R. v. Barrow,

854. R. V. Burrows, R. & R. 519 : 1 Lew. L. R. 1 C. C. R. 156, and R. v. Dee, 14 L. R.

288. (Ir.) 468 ; and of the disapproval of R. v.

(e) R. V. Cox [1832], 1 Lew. 292, 5 C. & P. Barrow by some of the English judges in
297, where the jury negatived emission and R. v. Flattery, 2 Q.B.D. 410. The enact-
the majority of the judges held a conviction ment only applies where the woman is
good. R. V. Marsden [1891], 2 Q.B. 149. awake. The offence was in R. v. Williams,

(/) See R. V. Camphn, 1 Den. 90. The 8 C. &. P. 286, held to be an assault. Cf.
prisoner had caused the insensibility by R. v. Saunders, ibid. p. 265. It is said to
giving the woman liquor for the purpose of have been ruled in R. v. O'Shay, 19 Cox,

CHAP. IX.] Of Rape. 935

whether a man who induces a married woman to permit him to have
connection with her by personating her husband is or is not guilty of rape,
it is hereby enacted and declared that every such offender shall be deemed
to be guilty of rape/

The question whether fraud as to the defendant's physical condition
is sufficient to deprive him of the defence of consent has been fully
discussed in R. v. Clarence (k) and ehcited differences of opinion.
But the rule accepted by the majority of the judges was that where
the act is consented to with knowledge of its nature the fact that the
defendant has concealed, or lied about, his physical condition, or the
fact that bodily harm to the woman results from the act does not warrant
the inference in law or fact that she did not consent to the act.

Force, Consent, Submission. — It is an essential element in the crime of
rape that the woman should not be a consenting party at the time when
the incriminating act is done. When the female is under sixteen, or is an
imbecile, idiot, or lunatic, and in fact consents, the man is not guilty of
rape, but is punishable under the enactments set out post, pp. 946 et seq.

Where a party took a woman by force, compelled her to marry him,
and then had carnal knowledge of her by force, it appears to have been
held that she could not maintain an appeal of rape against her husband,
unless the marriage were first legally dissolved : but that when the
marriage was made void ab initio by a declaratory sentence in the
Ecclesiastical Court, the offence became punishable, as if there had been
no marriage (l). As to carrying away a woman by force or fraud with
intent to marry her, &c., see post, p. 968.

The offence of rape may be committed, though the woman at last
yielded to the violence, if her consent was forced by fear of death
or by duress (m). If non-resistance on the part of a prosecutrix proceeds
merely from her being overpowered by actual force, or from her not being
able, from want of strength, to resist any longer, or from the number of
persons attacking her, she considered resistance dangerous, and absolutely
useless, the crime is complete (w). And it is no excuse that she was
first taken with her own consent, if she were afterwards forced against her
wiU ; nor is it an excuse that she consented after the fact, or that she was
a common strumpet, or the concubine of the ravisher : for she is still under
the protection of the law, and may not be forced (o). Circumstances of
this kind, though they do not necessarily prevent the offence from
amounting to a rape, are material to be left to the jury, in favour of the
accused, especially in doubtful cases (p). The notion that, if the woman
conceived, it could not be a rape, because she must in such case have
consented, is exploded (q).

76, Ridley, J., that the effect of 48 & 49 (m) 1 Hawk. c. 41, s. 6. 1 East, P. 0.

Viot. 0. 69 is to override R. v. Flattery 444 ; see post, p. 937.

and to establish that it is a good defence to (m) R. v. Hallett, 9 C. & P. 748, Coleridge, J.

a charge of rape to prove that consent was (o.) 1 Hawk. u. 41, s. 7. 1 East, P. C.

obtained by fraud ; sed quaere. 444, 445. 4 Bl. Com. 213.

(k) 22Q.B.D.23,aK.ie,p.932. In this case (p) 1 East, P. C. 445. See R. v. Harn-

doubts were thrown on the correctness of son, 2 Cr. App. R. 94.

the decisions in R. v. Bennett, 4 F. & F. (?) 1 Hale, 631. 1 Hawk. c. 41, s. 8.

1105, and R. v. Sinclair, 13 Cox, 28. 1 East, P. C. 445. Taylor, Medical Junsp.

(I) 1 Hale, 629. (5th. ed.). Vol. ii. p. 146.

936 Of Defilement or Corruption of Females, [book ix

Submission without resistance is not necessarily tantamount to con-
sent. The person assaulted may be too young to appreciate the nature
of the act done or to do more than submit without actually consenting ;
and submission by a child in the hands of an older and stronger person,
and possibly under the influence of fear or of a sense of constraining
authority, is not equivalent to consent (r).

In R. V. Nichol (s), a master took very indecent liberties with a female
scholar of the age of thirteen, by putting her hand into his breeches,
pulling up her petticoats, and putting his private parts to hers : she did
not resist, but it was against her will. The jury found him guilty of an
assault with intent to commit a rape, and also of a common assault ; and
the judges thought the finding as to the latter clearly right (t).

In R. V. Jones (u), on the trial of a father for a rape on his daughter,
aged fourteen years, it appeared that her father laid hold of her and had
connection with her ; he had previously told her not to tell anyone what
he had done to her ; he had said he would throttle her and kill her, if she
told anything he had done ; he had throttled her, and had had connection
with her many times before ; and on these occasions he had told her not
to tell, and that was the reason she did not tell ; she had consented to the
prisoner's having connection with her because she was afraid of him ;
she was afraid of his choking her. Channell, B., told the jury that,
' if it is made out to your satisfaction that a kind of reign of terror was
set up in this family, and in consequence of that terror and dread the
girl allowed the connection to take place without resistance, then I am
of opinion you may convict. It is possible she may have been a consent-
ing party, and not infl.uenced by dread : that is a question for you. She
says the same thing had been done upon previous occasions, and her
father had told her he would throttle her if she told her mother, and
that is why she did not tell. She says she begged him not to do it, and
to be quiet and leave her alone. This, in ordinary case would be quite
insufficient ; but in this case, if you think she remained passive under
the influence of that dread and reign of terror which I have mentioned,
and that is clearly made out, you may find the prisoner guilty ' (v).

Submission to an act of carnal intercourse by a quack doctor on the
faith of his statement that he was performing a surgical operation was
held not to amount to consent, and he was convicted of rape (w).

A girl of sixteen was taken by her parents to the defendant, a German
quack, on account of fits, by which she was afflicted ; he said he would
cure her, and bid her come again the next morning ; she went accordingly
the next morning by herself, and he told her she must strip naked ; she
said she would not. He said she must, or he could not do her any good.
She began to untie her dress, and he stripped off all her clothes ; she did
nothing ; he pulled off everything ; she told him she did not like to be

(r) B. V. Day, 9 C. & P. 722, Coleridge, (w) R. v. Kattery, 2 Q. B. D. 414. In

J. that case it was said that a conviction

(s) MS. Bayley, J., and R. & B. 130. for indecent assault could be had if the

(t) e.g., R. V. M'Gavavan, 3 C. &. K. consent was obtained by fraud. It seems

320, Williams, J. to have been ruled that this decision is

(m) [1861], 4 L. T. (N. S.) 154. overridden by 48 & 49 Vict. c. 69, s. 4. R. v.

(v) Cf. R. V. Day, ubi supra, R. v. Wood- O'Shay, 19 Cox, 70, Ridley, J. ; sed quaere.
house, 12 Cox, 443.

CHAP. IX.] Of Rape. 937

stripped in that manner. When she was naked he rubbed her with a
liquid. The case was left to the jury to consider whether the defendant
believed that stripping the girl would assist his judgment, or whether he
did not strip her wantonly, without thinking it necessary ; and they were
told that the making her strip and pulling her clothes off might, "under
the latter circumstances, justify a verdict for an assault. The jury found
the defendant guilty ; and, upon a case reserved, it was held that the
conviction was right (x). And it has been held that where a girl of fourteen
submitted without resistance to carnal intercourse with a medical man
who made her believe that he was treating her medically, he was guilty
of assault (y).

Upon an indictment containing a count for an assault with intent to
commit a rape, and a count for a common assault, it appeared that the
defendant, a surgeon, attended the prosecutrix for bleeding piles, and
had been with her to consult another surgeon, and afterwards went with
her into her bedroom, and told her he was ordered to give her an injection,
and directed her to put her head on the bed and her feet on the floor,
which she did, and her clothes were up over her back. He then began
to use the injection, and the water ran down her legs. She was going
to raise herself up, and he said, ' Put your head on the bed and do not
stir for a moment.' She had had injections before, and they keep persons
still for a little while after they are applied. As she lay she perceived
something very warm against her person ; she resisted, and rose up from
the bed, and said, ' Doctor, what do you mean ? ' His small clothes
were quite open. She felt the parts of the prisoner enter hers just a
little. Coleridge, J. : ' An assault with intent to commit a rape is very
different from an assault with intent to have improper connection. The
former is with intent to have connection by force ; but here, according
to the statement of the prosecutrix, the prisoner desists the moment she
resists, and at most it could only be an attempt by surprise to get posses-
sion of the person of the prosecutrix, and that is not an assault with
intent to commit a rape, but is an assault. If in this case the prisoner
had intended to have effected his purpose by force, the complete offence
of the rape would have been proved, as the prosecutrix states that the
prisoner penetrated her person, and the smallest penetration is sufficient
to complete the offence of rape ' (2).

Upon an indictment for assault it appeared that the prisoner was a
medical man, and that the girl alleged to have been assaulted was fourteen
years old, and had been placed under his professional care in consequence
of illness arising from suppressed menstruation. The defendant gave her
medicines, and on her going to his house, and informing him that she was
no better, he observed, ' Then I must try further means with you.' He
then laid her down in the surgery, lifted up her clothes, and had connection
with her, she making no resistance, believing, as she stated, that she was

[x) R. V. Rosinski, MS. Bayley, J., and 1 liberties, but alleged that the connection

Mood. 19; I Lew. 11. was against her will. The accused ad-

(y) B. ?;. Case, 1 Den. 580: 19L. J. M. C. mitted the attempt but said that the

174. woman then resisted and that he desisted.

(z) R. V. Stanton, 1 C. & K. 415. In The summing up of Channell, B., accorded

B. V. Wright, 4 P. & F. 967 the woman, with that in R. v. Stanton.
admitted that she had allowed extreme

938 Of Defilement or Corruption of Females, [book ix.

submitting to medical treatment for the ailment under which she laboured.
The jury were directed that the girl was of an age to consent to. a man
having connection with her, and that if they thought she consented to
such connection with the defendant, he ought to be acquitted ; but if
they were satisfied she was ignorant of the nature of the defendant's act,
and made no resistance solely from a bona-fide belief that the defendant
was (as he represented) treating her medically with a view to her cure,
his conduct amounted in point of law to an assault. The jury convicted,
and, upon a case reserved upon the question whether this direction to
the jury was correct in point of law, after argument, Wilde, C.J., thus
delivered judgment : ' This case is free from doubt. The finding of the
jury is clear. They are told that if they think she consented to the
connection, they must acquit ; that the girl was competent to consent ;
and that it is a question for them whether she did so or no. This is
said to be qualified by what follows, viz., that if they thought she made
no resistance, solely from the belief that the prisoner was treating her
medically, they should convict of an assault. I do not see that this is
any qualification ; it is a strictly correct direction. The girl is fourteen
years old. She might at that age be ignorant of the nature of the act,
morally as well as physically, and of its possible consequences. It is
said that, as she made no resistance, she must be viewed as a consenting
party. That is a fallacy. Children who go to a dentist make no resistance ;
but thfey are not consenting parties. The prisoner disarmed her by fraud.
She acquiesced under a misrepresentation that what he was doing was
with a view to a cure, and that only ; whereas it was done solely to gratify
the passion of the prisoner. How does this differ from a case of total
deception ? She consented to one thing ; he did another materially
different, on which she had been prevented by his fraud from exercising
her judgment and will. The cases (a) which have been referred to shew
that where consent is caused by fraud, the act is at least an assault, and
perhaps amounts to rape. It has been suggested that were the act to
be regarded in the light of medical treatment, it would be no offence, and
that it was not left to the jury whether the prisoner did not intend it
as such. That certainly was not left to them, nor need have been. The
notion that a medical man might lawfully adopt such a mode of treatment
is not to be tolerated in a court of justice. He would have committed a
high ecclesiastical offence at all events ' (6).

Indictment. — As the absence of previous consent is a material ingre-
dient in the offence of rape, it should be averred in the indictment by the
words ' violently and against her will ' or ' without her consent ' (c). It is
essential to aver, that the offender ' feloniously did ravish ' the party ; and
the omission of the word ' ravished ' will not be supplied by an averment
that the offender ' did carnally know,' &c. (d). It has been considered
that the words ' did carnally know' are not essential, on the ground that
rapere signifies legally as much as carnaliter cofjnoscere (e) ; but they are

(a) R. V. Saunders, 8 C. & P. 265. R. v. PI. ed. 409. 3 Chit. Or. L. 815.
WilUams, ibid. 286. [d) 1 Hale, 628-632. Br. Indict, pi. 7,

(6) R. V. Case, 1 Den. 580. See R. v. citing 9 Ed. IV. c. 6.
Rosinski, I Mood. 19, ante, p. 937. (e) 2 Co. Inst. 180, and see 2 Hawk.

CHAP. IX.] Of Rape. 939

appropriate to describe the nature of the crime, and appear to be generally
used (/), and this omission would not be prudent (g). Six judges out
of twelve thought that omission in an indictment of the words ' carnaliter
cognovit ' was cured by verdict, because those words were not in 9 Geo.
IV. c. 31 ; but they thought it bad before verdict (h). Where an indict-
ment alleged that the prisoner in and upon E. F., ' violently and feloniously
did make (omitting '' an assault "), and her the said E. F., then and there
and against her will, violently and feloniously did ravish and carnally
know ' ; upon a case reserved, ten of the judges were of opinion that the
judgment ought not to be arrested, because of the omission of the words
' an assault ' (i).

The indictment against aiders and abettors may lay the fact to have
been done by all, or may charge it as having been done by one and abetted
by the rest. Thus where, upon an appeal against several persons for
ravishing the appellant's wife, an objection was taken that only one
should have been charged as ravishing, and the others as accessories ; or
that there should have been several appeals, as the ravishing of one
would not be the ravishing of the others : it was answered that if two
come to ravish, and one by comport of the other does the act, both are
principals, and the case proceeded (l). And where the indictment was
against three persons for a rape, charging them all as principals in the
first degree, that they ravished and carnally knew the woman ; and the
prisoners were all found guilty ; the judge who tried them doubted whether
the charge could be supported ; and, at his desire, the case was mentioned
by Heath, J., to the other judges, and all who were present agreed that
the charge was valid, though the form was not to be recommended ; but
they gave no regular opinion, because the case was not regularly before
them (m).

On an indictment of one for rape and another for aiding and abetting
the rape, if the principal is (under 14 & 15 Vict. c. 100, s. 9) convicted of
an attempt to commit rape the other defendant may be convicted of
aiding and abetting the attempt (n).

An indictment in the first count charged F. with committing a rape,
and L. with being present, aiding and assisting ; the second count charged
L. as principal in the first degree, and F. as aiding and assisting ; the
third count charged an evil-disposed person, to the jurors unknown, as
principal in the first degree, and F. and L. as aiding and assisting ; and
the fourth count charged a certain other evil-disposed person as principal,

( / ) See the precedents referred to ante, to conclude the indictment against the

note (c). form of the statute and against the peace.

ig) 1 East, P. C. 448. 2 Stark. Cr. PI. 1 East, P. C. 448 ; but see 2 Stark. Cr.

409, note {p). 3 Chit. Cr. L. 812. It is PI. 409, note. R. v. Scott, R. &. R. 415.

laid down, generally, in some of the books Neither conclusion is now necessary,
that the indictment must be rapuit et [I) R. v. Vide, Fitz. Corone, pi. 86.

carnaliter cognovit, 1 Hale, 628-632. (m) R. v. Burgess, Tr. T. 1813, Ellen-

(,h) R. V. Warren, M. T. 1832, MSS. borough, C.J., Sir James Mansfield, C.J.,

Bayley, B. 3 Burn's Justice (ed. D. & W.) and Grose, J., were absent. In 5 Evans'

725. See 7 Geo. IV. o. 64, o. 21, post. Col. Stat. CI. 6, p. 399, note (12), the case

Vol. ii. p. 1936. 24 & 52 Vict. c. 100, s. 48 is mentioned as having occurred at the

{ante, p. 931) speaks of ' rape ' without Chester Spr. Ass. 1813.
defining it. (») R. v. Hapgood and Wyatt, L. R. 1

(i) R. V. Allen, 9 C. & P. 521 ; 2 Mood. C. C. R. 221 : S. C. sub. nom. R. v. Wyatt,

179. It used to be considered necessary 39 L. J. M. C. 83.

940 Of Defilement or Corruption of Females, [book ix.

and F. and L. as aiders. For the defence, before pleading it was moved
to quash the indictment on the ground that it was bad for misjoinder of
two offences of a different nature, and not liable to the same punishment,
and that for aiding and abetting no provision was madp by 9 Geo. IV.
c. 31. It was also contended that the indictment contained different
transactions and that the prosecutrix was bound to make an election.
The Court overruled both objections. L. was acquitted, and a general
verdict of guilty was found against F. It appeared that the prisoner,
together with three other men, committed at the same time and place,
the one after the other, successive rapes upon the body of the prosecu-
trix, the others aiding and abetting in turn ; and the evidence, if believed,
was sufficient to sustain the first count, as far as it charged F. as principal,
as the other counts which charged him as aiding and assisting ; and,
upon a case reserved, the judges held that the conviction was good on
the first count (o). Where the first count charged Gr. as principal in the
first degree, and W. as present, aiding and assisting : and the second
count charged W. as principal in the first degree, and G. as present,
aiding and assisting ; it was moved to quash the indictment, on the
ground of misjoinder, as the judgment might be different, and it was
said that this objection did not ultimately become material in the
preceding case, as one prisoner alone was convicted ; but Coleridge, J.,
said: ' The 9 Geo. IV. c. 31, s. 16, awards the punishment of death to
" every person convicted of the crime of rape." Now, I take it that a
principal in the second degree falls clearly within that provision : and
that, therefore, the objection that the judgment might be different
entirely fails ' (p). A woman who has aided a man in the commission of
a rape may be indicted as a principal (q).

Evidence. — The unsworn evidence of young children is not admissible
on an indictment for rape (r), but is admissible on an indictment for
unlawfully and carnally knowing, or attempting to have unlawful carnal
knowledge of, a girl under thirteen (s).

The woman ravished is a competent witness : and indeed is so much
considered as a witness of necessity, that where a husband was charged

(o) R. V. Folkes, 1 Mood. 354. ' There where on an indictment for abusing a child

ia an inaccuracy in the statement of this under ten years of age, the child was

case ; it treats the charge against the prin- wholly ignorant of the nature of an oath,

cipal in the first degree as one count, and and therefore not examined, and it was

the charge against the principal in the proposed to give evidence of a statement

second degree as another count ; but that made by her relative to the offence, and

is not so, as both charges only constitute the name of the person who committed it ;

one count, as is plain from the indictments Pollock, C.B., refused to admit it, observ-

in murder, in which the conclusion, " and ing, ' If a man says to his surgeon, " I

so the jurors, &c., say, that A., B., and 0. have a pain in my head," or a pain in such

murdered," always follows the allegation a part of the body, that is evidence ; but

that B. and C. were present, aiding and if he says to his surgeon, " I have a wound,"

assisting.' C. S. G. and adds, " I met John Thomas, who had

(p) R. V. Gray, 7 C. & P. 164. R. v. a sword, and ran me through the body

Crisham, C. & M. 187. See also B. v. with it," that would be no evidence against

Parry, 7 C. & P. 836, where an indictment John Thomas : and it is certainly a very

against five charged each as principal in odd reason for receiving the evidence

one count, and the others as aiders and of what a child has said, that that child

abettors. is not capable of taking an oath.' Cf.

ig) R. V. Ram, 17 Cox, 609. R. v. Brasier, 1 East, P. C. 443.

(r) In R. V. Nicholas, 2 C. & K. 246, (s) 48 & 49 Vict. c. 69, a. 4, post, p. 948.

CHAP. IX.] Of Rape. 941

with having assisted another man in ravishing his own wife, the wife was
admitted as a witness against her husband (t).

But though the party ravished is a competent witness, the credibihty
of her testimony must be left to the jury, upon the circumstances of fact
which concur with that testimony. Thus, if she is of good fame ; if
she presently discovered the offence, and made search for the offender ; if
she shewed circumstances and signs of the injury, whereof many are of
that nature that women only are proper examiners ; if the place where
the fact was done were remote from inhabitants or passengers ; if the
party accused fled for it ; these, and the like, are concurring circumstances
which give greater probabihty to her evidence (u). But if, on the other
hand, the witness is of evil fame, and stands unsupported by others ; if,
without being under control, or the influence of fear, she concealed the
injury for any considerable time after she had the opportunity of com-
plaining ; if the place where the fact is alleged to have been committed
was near to persons by whom she might probably have been heard, and
yet she made no outcry ; if she has given wrong descriptions of the place ;
these and the like circumstances, afford a strong, though not conclusive,
presumption that her testimony is feigned {v).

The offence of rape is not triable at quarter sessions (w).

On an indictment for rape, the jury, if not satisfied that the complete
offence has been committed, may convict of an attempt to commit
rape {x). And by sect. 9 of the Criminal Law Amendment Act, 1885
(48 & 49 Vict. c. 69), ' If upon the trial of an indictment for rape or
any offence made a felony by sect. 4 of this Act the jury shall be satisfied
that the defendant is guilty of an offence under sects. 3, 4, or 5 {vide post,
pp. 951-956) of this Act (y) or of an indecent assault but are not
satisfied that the defendant is guilty of the felony charged in such
indictment or of an attempt to commit the same, then, and in every
such case the jury may acquit the defendant of such felony and find him
guilty of such offence as aforesaid or of an indecent assault : and there-
upon such defendant shall be liable to be punished in the same manner
as if he had been convicted upon an indictment for such offence as
aforesaid or for the misdemeanor of an indecent assault ' {z).

Attempted Rape. — Attempts to choke, suffocate, or strangle a woman
with intent to commit rape fall within 24 & 25 Vict. c. 100, s. 21 (a), and
are punishable by flogging (6) in addition to and in substitution for the

{t) R. V. Lord Castlehaven, 3 St. Tr. 402. under thirteen, which are misdemeanors,

1 Hale, 629. Hutt. 116. 1 Str. 633. a conviction could be had for common

(u) 1 Hale, 633. 1 East, P. C. 445. 4 Bl. assault. See R. v. Guthrie, L. R. 1 C. C. R.

Com. 213. R. V. Osborne [1905], 1 K. B. 241. As to the principle see R. v. Taylor,

551 559. L. R. 1 C. C. R. 194, an indictment for

(v) 4 Bl. Com. 213, 214. 1 East, P. C. unlawful wounding. As to the double de-

445 446. fence, see R. v. Chadderton, 1 Cr. App.

(w) 5 & 6 Vict. c. 38, s. 1, being punish- R. 229.
able by penal servitude for life on a first (z) Punishment of Incest Act, 1908, post,

conviction. P- 973.

(x) 14 & 15 Vict. u. 100, s. 9, post. Vol. ii. (a) Ante, p. 863.

p 1986. (6) 26 & 27 Vict. c. 44, ante, p. 216. In

{«) It is to be noted that a conviction R. v. Smallbones, Hants Winter Assizes,

for common assault cannot be made on an 1898, a sentence of flogging was awarded for

indictment for rape. But on an indictment an offence under s. 21 with intent to com-

for assault with intent to commit rape or mit rape. See Archb. Cr.Pl. (23rd ed.) 239.
for an attempt carnally to know a girl

942 Of Defilement or Conuftion of Females, [book ix

other punishments lawful under that section. Use of stupefying or
overpowering drugs with intent to commit an indictable offence is
punishable under 24 & 25 Vict. c. 100, s. 22 (c).

Where there is no reason to expect that the facts and circumstances
will suffice in evidence to prove commission of the complete offence, the
proper course is to^indict for the common-law misdemeanor of an attempt
to commit rape {d), or for the misdemeanor of assault with intent to ravish,
which is, under 24 & 25 Vict. c. 100, s. 38 {ante, p. 893), punishable as
an assault with intent to commit felony, by imprisonment with or with-
out hard labour for not more than two years (e). Courts of Quarter
Sessions have jurisdiction to try this offence. Aiding and abetting an
attempt to ravish is punishable under 24 & 25 Vict. c. 94, s. 8, and 24 &
25 Vict. c. 100, s. 67 {amte, pp. 138, 139).

As to indecent assaults on females, vide post, p. 955.

Upon an indictment for an assault with intent to commit a rape,
Patteson, J., in summing up, said : ' In order to find the prisoner guilty of
an assault with intent to commit a rape, you must be satisfied that the
prisoner, when he laid hold of the prosecutrix, not only desired to gratify
his passions upon her person, but that he intended to do so at all events,
and notwithstanding any resistance on her part (/). He also ruled that
evidence that the prisoner, on a prior occasion, had taken liberties with
the prosecutrix was not admissible to shew the prisoner's intent (g).

Under a count for an assault with intent to commit rape, a prisoner
may be convicted of common assault {h). But on an indictment contain-
ing a count for an assault with intent to commit a rape, and a count for
a common assault, if the prisoner be acquitted on the count for an assault
with intent to commit a rape, on the ground that the prosecutrix consented,
he cannot be convicted on the count for a common assault ; for to sup-
port that count such an assault must be proved as could not be justified
if an action were brought for it, and leave and licence pleaded (i).

An indictment may contain two counts for two different attempts to
commit a rape on the same female, and evidence of both may be given
on the trial (j). And where one count charged the prisoner with an
attempt to commit a rape, and another count charged him with an assault
and the record stated that the jury found him ' guilty of the misde-
meanor and offence in the said indictment specified,' and it was adjudged
that ' for the said misdemeanor,' he shall be imprisoned for two years
and kept to hard labour ; it was held, upon error, that the word ' misde-
meanor ' was nomen collectivum, and therefore the finding of the jury
was in effect that the prisoner was guilty of the whole matter charged
by the indictment, and consequently the judgment was warranted by
the verdict (k).

Evidence of Fresh Complaint.— On a trial for rape the fact that a

(d) And see R. v. Hapgood, L. R. 1 0. 0. R. {h) 1 Lew. 16, HuUook, B.

221, ante, p. 939. (i) R. v. Meredith, 8 C. & P. 589, Abinger,

(e) As to fines and sureties see 24 & 25 C.B.

Viot. c. 100, s. 71, ante, pp. 217, 218, and (j) R. v. Daviea, 5 Cox, 328.

as to probation vide ante, p. 227. Aa to (i) R. -o. Powell, 2 B. & Ad. 75, Taun-

common law punishment see 1 East, P. C. ton, J., though the two counts only

441. charged one assault.
(/) R. V. Lloyd, 7 C. & P. 318.

CHAP. IX.] - Of Rape. 943

complaint was made by the prosecutrix shortly after the time when the
offence is alleged to have been committed and the particulars of the
complaint may, so far as they relate to the charge against the prisoner,
be given in evidence for the prosecutrix, not as evidence of the facts
complained of nor as part of the res gestce, but to shew the consistency
of the conduct of the prosecutrix with the evidence given by her at the
trial and as negativing consent on her part (l).

R. V. Clarke (m), cited in former editions of this work (n) as authority
for the proposition that the particulars of the complaint cannot be given
in evidence is said by Hawkins, J., in U. v. Lillyman (I) not to contain
any such ruling, but to decide only (1) that the fact of the woman
having made the complaint is admissible, (2) that the fact and the
particulars of the complaint are not evidence of the truth of the
complaint or of the statements of fact on which it was based ; and these
rulings he adopted as settled law (o).

The cases of R. v. Walker (p), R. v. Osborne (q) so far as they are
inconsistent with R. v. Lillyman are overruled. R. v. Wood (r) is in
accord with R. v. Lillyman (s), and so is R. v. Eyre (t) except as to the
ruling by Byles, J., that what was said to the woman in answer to what
she said immediately after the occasion was equally evidence with her
complaint (m), which is open to question.

The ruling in R. v. Lillyman makes it unnecessary to resort to the
modes of getting in the particulars of the complaint by indirect methods
countenanced in R. v. Wink (v), but disapproved in R. v. Osborne (ubi
sup.) and R. v. Taylor (w) and in R. v. Lillyman (x).

The rule as to the admissibility of fresh complaint appUes not only to

rape but also to attempts to have carnal knowledge of a girl of thirteen

and under sixteen (y), assaults with intent to ravish, and indecent assaults,

(l) R. V. Lillyman [1896], 2 Q.B. 167. particular person, but declined to alio w her

See R. V. Brasier, 1 Leach, 199, 1 East, P. C. to say whom!

443, and for a discussion of the law by the (r) [1877] 14 Cox, 46, Bramwell, L.J.

Rt. Hon. Sir J. H. de Vilhers, R. v. Jenkin- In R. v. Lillyman [1896], 2 Q.B. 175, the

son [1904], 21 Cape S. C. Rep. 233. Court agreed with the ruhng that the

(m) 2 Stark. (N. P.) 241, Holroyd, J. complaint was not admissible as part of

(») 6th ed. vol. iii. pp. 232, 233. the res gestce, and doubted whether the

(o) [1896] 2 Q.B. 173, citing 1 Phillips evidence would have been rejected if it

and Arnold on Evidence (10th ed.), 204. had been pressed on the judge that the

{p) [1839] 2 M. & Rob. 212, where complaint in all its detail was nevertheless

Parke, B., after referring to the usage then a fact admissible to prove consistency of

prevailing of excluding particulars of the conduct on the part of the prosecutrix,

complaint, said he could not understand (s) [1896] 2 Q.B. 167.

the reasons for hmiting the examination-in- {t) [1860] 2 F. & P. 579.

chief to the general inquiry whether a («) See R. t;. Lillyman[1896], 2Q.B. 167,

complaint had been made and leaving the 176.

particulars to be elicited, if at all, by (v) [1834] 6 C. & P. 397, where Patteson,

cross-examination. See hereon R. v. J., held that a party, who had been robbed,

Lillyman [1896], 2 Q.B. 173, 174. might be asked if he named any person

(q) [1842] C. & M. 622. In that case, as the person who had robbed him to a

Cresswell, J., ruled that what the proseou- constable, but that he ought not to be

trix said at the time when the offence was asked what name he mentioned. This case

committed was admissible (as part of the was criticised by Mr. Greaves. Russell on

res g'csice), because the prisoner was present Crimes (6th ed.) vol. iii., 233 note, as at

and the violence going on ; (2) that if the variance with R. v. Walker, tibi sup.

prisoner had gone away, and the prosecu- {w) [1874] 13 Cox, 77, Brett, J.

trix had in running away shouted out the (x) [1896], 2 Q.B.D. at p. 179.

name of the prisoner, they would not be (y) 48 & 49 Vict. c. 69, s. 5, post, pp. 947,

admissible. He allowed the prosecutrix §51,
to be asked whether she had named a.

944 Of Defilement or Corruption of Females, [book ix.

whether the female assaulted is (z) or is not {a) of an age to consent to an
indecent assault.

The question arose whether the rule in E. v. Lillyman was limited to
cases of offences against females, where the absence of consent was an
essential element in law of the offence. Upon this fact there were
inconsistent rulings (b), but in E. v. Osborne (c) it was decided that the
complaint in the case of offences against female chastity (d) is admissible,
not merely as negativing consent but establishing the consistency of the
story told by the prosecutrix at the trial, which, from the nature of the
case, is aided by proof of immediate complaint and discredited by failure
to make it, and that whether consent in the particular case is legally a
necessary part of the issue or is a collateral issue of fact or merely part
of the story of the prosecutrix, in either case it is equally admissible (e).

The rules now established are clearly exceptional, but are traced
historically to the old common-law rule applicable in appeals of rape, that
it was for the prosecution to shew whether, while the offence was recent,
the woman raised the hue and cry and shewed her injuries and clothing
to others (/).

The rule is obviously one to be kept carefully within due limits. ' It
applies only where there is a complaint, not ehcited by questions of a
leading and inducing or intimidating character (g), and only when it is
made at the first opportunity after the offence which reasonably offers
itself within such bounds . . . the evidence should be put before the
jury, the judge being careful to inform the jury that the statement is
not evidence of the facts complained of and must not be regarded by
them, if believed, as other than corroborative of the complainant's
credibility, and when consent is an issue of the absence of con-
sent' (h).

The following rulings have been given as to the time within which the
complaint must be made for it to be admissible. Three weeks after the
alleged offence, indecent assault, has been held too late (^) and a complaint
was held too late when made on the Monday following the day of the
alleged offence, Saturday (j). It need not be made on the earliest possible
opportunity, but on the first opportunity which reasonably offers (it).

(z) B. V. Lillyman [1896], 2 Q.B. 167. ( /) R. «. Osborne [1905], 1 K.B. 551, 559.

(a) R. V. Osborne [1905], 1 K.B. 551. (g) Ibid, at p. 561.

(6) InR.<;. Rowland [1898], 62 J. P. 459, {h) R. v. Osborne [1905], 1 K.B. 561,

Hawkins, J., limited the rule to oases where Alverstone, L.C.J., Kennedy, Ridley,

the question of consent was legally material. Channel!, and Phillimore, JJ. Tins

In R. V. Kiddle [1898], 19 Cox, 77 ; and decision must be taken to overrule R. v.

B. V. Kingham [1902], 66 J. P. 393, Rowland [1898], 62 J. P. 459, Hawkins,

Lawranoe, J., the rule was appUed to J., and R. v. Merry, 19 Cox, 442. See

indecent assault of a girl under thirteen. B. v. Jenkinson [1904], 21 Cape Sup.

(c) [1905] 1 K.B. 551. The indictment Ct. 233. In R. v. Spuzzum, 12 Canada
was for an indecent assault and a common Cr. Cas. 287, evidence was admitted of a
assault on a girl aged twelve, whose consent statement made by a girl of sixteen to her
to indecent assault was not in law a defence aunt (the first adult female she had seen
(43 & 44 Vict. u. 45, s. 2, post, p. 955). since the assault) in answer to a general

(d) The ruUng of Hall, Recorder, on R. v. question, ' What is the trouble ? '

Folley [1896], 60 J. P. 569, applying the (i) R. v. Pantaney; 71 J. P. 101 (C. C. R.).

rule to felonious wounding with intent to (j) R. v. Ingrey, 64 J. P. 107, Russell,

do bodily harm, is not warranted by the L.C.J.

authorities, except so far as the complaint {k) R. v. Osborne [1905], 1 K.B. 551,

was part of the res gestae. 561 ; R. v. Kiddle, 19 Cox, 77 ; and

(e) [1905] 1 K.B. 558. R. v. Spuzzum, ante, note (h).

cflAp. 1^.1 Of Rap. 94^

The question whether the complaint was made reasonably soon appears
to be for the judge and not for the jury (1).

In E. V. Megson (m) a woman who had undoubtedly been ravished
by some man had died before the trial without having made any admis-
sible deposition which could be placed before the jury. An attempt was
made to put in evidence a detailed account of the transaction in the
shape of a complaint by the woman with a view by that complaint alone
to shew the prisoner to be the guilty person. Eolfe, B., rejected the
evidence, saying : ' There is a wide difference between receiving such
statements as confirmation of a prosecutrix's credibility in a charge of
rape in which she is examined as a witness and a case like the present,
where the complaint made is to be received as independent evidence.'

In R. V. Gruttridge (n), where the prosecutrix, though living, was not
examined as a witness, Parke, B., held that it was not competent to
prove that she made a complaint soon after the occurrence ; for such
evidence would be merely confirmatory of the story of the prosecutrix,
and no part of the res gestcB [nn).

The character of the prosecutrix, as to general chastity, may be
impeached by general evidence (o), as by shewing her general light
character, and giving general evidence of her being a street walker (p).
And the prosecutrix may be cross-examined as to particular discreditable
transactions (q) and as to her having had connection with the prisoner
previously to the alleged rape (r), and if she deny such connection, the
prisoner may shew that she has been previously connected with him (s).
On an indictment for an indecent assault, as in cases of rape, or attempt
to commit rape, the answer of the prosecutrix, to questions put to her
on cross-examination as to particular acts of connection with persons
named to her, other than the prisoner, is final, and the party questioning
is bound thereby, and if her answer be a denial, the persons named
cannot be called to contradict her (t).

Where, on a trial for rape, the prosecutrix was cross-examined as to
a charge of stealing money from a former mistress, and as to the accoimt
she had given of the money found in her possession to a constable, and
she said that she told the constable a gentleman had given it her for
not telling of his insulting her, and denied that she had told him that it

{!) R. V. Ingrey, uhi sup. Patteson, J., admitted evidence that the

(m) [1840] 9 C. & P. 420. Rolfe, B., in prosecutrix had been seen on the streets of

summing up, referred to the rule as to Shrewsbury as a, reputed prostitute. In

admission of the complaint, in terms which R. v. Tissington, 1 Cox, 48, Abinger, C.B.,

were in R. v. Lillyman [1896], 2 Q.B. 174, allowed witnesses to be called to prove

held consistent with the opinion that the general want of decency in the prosecutrix,

particulars as well as the fact of complaint and then permitted the prosecutrix to call

are admissible. witnesses to rebut their evidence.

(w) [1840] 90. & P. 471. Of. 1 East, P. C. (q) B. v. Barker, 3 0. & P. 589. See R.

443. This case ruled nothing as to the v. Holmes, infra.

admissibility of the particulars where the (r) R. v. Martin, 6 0. & P. 562, approved

ravished woman was called. R. v. Lilly- in B. v. Holmes, infra.
man [1896], 2 Q.B. 175. (s) R. u. Riley, 18 Q.B.D. 481.

(nn) In R. v. Harrison, 2 Or. App. Rv 94, (t) R. v. Holmes, L. R. I C. 0. R. 334.

a conviction of indecent assault on an Seirible, that the question may be put to

indictment for rape was upheld though her in cross-examination, but that she is

the prosecutrix had absconded. not bound to answer it : ibid. R. v. Hodgson,

(o) B. V. Clarke, 2 Stark. (N. P.) 241. B. & R. 211. R. v. Robins, 2 M. & Rob.

Taylor, Ev. (10th ed.),ss. 363, 1470. 512, is overruled; and R. v. Cockoroft

(j)) R. 0. Clay, 5 Cox, 146, where 11 Cox, 410, is approved in R. «. Holmes.

VOL. I.

946 Of Defilement or Corruption of Females, [book ix.

was given her by the gentleman for having connection with her ; it was
held that the constable could not be called to contradict her, and to
prove that she told him the gentleman had given her the money for
having connection with her (m).

The application of these and other rules should always be made with
due regard to the caution given by Hale, who says : ' It is true, that rape
is a mosb detestable crime, and therefore ought severely and impartially
to be punished with death ; but it must be remembered, that it is an
accusation easily to be made and hard to be proved, and harder to be
defended by the party accused, though never so innocent ' (v). He then
mentions two remarkable cases of malicious prosecution for this crime,
that had come within his own knowledge : and concludes, ' I mention
these instances, that we may be the more cautious upon trials of offences
of this nature, wherein the Court and jury may, with so much ease, be
imposed upon without great care and vigilance : the heinousness of the
offence many times transporting the judge and jury with so much indigna-
tion, that they are over-hastily carried to the conviction of the person
accused thereof, by the confident testimony, sometimes, of malicious and
false witnesses ' (w).

Where, on a trial for rape, the prosecutrix stated that she complained
almost immediately to her mistress, and the next day her clothes were
washed by a washerwoman, and they had blood on them ; PoUock, C.B.,
directed these persons to be called as witnesses for the prosecution,
although they were attending as witnesses for the prisoner, but allowed
the counsel for the prosecution all latitude in examining them (x).

On a trial for rape it was proposed on the part of the prisoner to ask
a witness for the defence as to something that had been said by a relative
of the prosecutrix to a relative of the prisoner, in the presence of the
prosecutrix, about making it up ; it was objected that evidence of a
conversation between third persons, not made in the presence of the
prisoner, was inadmissible. Martin, B. : ' In a civil case, what is said
in the presence of either of the parties is admissible, because it is open
to the party so present to express assent or dissent to what is said, and
that would be admissible against him. In criminal cases, the prosecutor,
although not in strict law a party to the case, is so in fact ; and I think
that the rule applicable to conversation in the presence of a party in a
civil case may be fairly extended to a conversation in the presence of the
prosecutor in a criminal case ' (y).

I Sect. II. — Unlawful Carnal Knowledge of Idiot,

I Imbecile, and Lunatic Females.

Common Law. — On a trial for a rape upon an idiot girl, Willes, J.,
directed the jury, that if they were satisfied that the girl was in such a
state of idiocy as to be incapable of expressing either consent or dissent,

(«) R. V. Dean, 6 Cox, 23, Piatt, B., was referred to arguendo in R. o. Holmes,

after consulting Wightman, J. but is not noticed in the judgments. In any

(«) 1 Hale, 635. event the suggested conversation appears

{w) 1 Hale, 636. to have been meant to suggest evidence

(x) R. u. Stroner, 1 C. & K. 650. of subsequent consent, which is no defence

{y) R. V. Arnall, 8 Cox, 439. This case in rape, vide ante, p. 935.

CHAP. IX.] Of Carnal Knowledge of Idiot, c&c., Females. 947

and that the prisoner had connection with her without her consent, it
was their duty to find him guilty ; but that a consent produced by mere
animal instinct would be sufiicient to prevent the act from constituting
a rape {z).

In a subsequent case it was held that there must be some evidence
of want of consent, even when the woman is an idiot, to warrant a convic-
tion for rape (a). This decision must be taken as a ruling on the
particular evidence : and in E. v. Barratt (h), the Court adopted the
rule of law as laid down in the earlier case of E. v. Fletcher (c).

In E. V. Barratt, the prisoner was convicted of attempting to rape a
girl of fourteen years of age who had been blind from six weeks old and
wrong in her mind, hardly capable of understanding anything that was
said to her, but capable of going up and down stairs by herself. If
placed in a chair by anyone she would remain there till night, passing
her evacuations in the chair. If told to lie down she would do so. She
could not communicate to her friends what she wanted. She could feed
herself a little, but was obliged to be dressed and undressed, and was
unable to do any work. The prisoner had known her and her family for
two years, and knew she was not right in her mind. There were no
marks of violence, but there had been recent connection, and the surgeon
thought she had been in the habit of having connection. The girl upon
being brought into Court was evidently idiotic, and it was found impos-
sible to communicate with her. She grinned, and made no reply to
questions except a vacant laugh. The prisoner was seen by the girl's
father lying on the girl, who was lying on a couch where she had been
placed by her sister. When the father entered the room the prisoner
was standing up buttoning his trousers, while the girl was lying quietly
on the couch. Blackburn, J., said there was ample evidence of the want
of capacity to give consent, and it was held that the act being done
without consent the prisoner was rightly convicted.

Statutes. — By sect. 5 of the Criminal Law Amendment Act, 1885
(48 & 49 Vict. c. 69), ' Any person who —

(2) Unlawfully and carnally knows or attempts to have unlawful
carnal knowledge (d) of any female idiot or imbecile woman or girl
under circumstances which do not amount to rape (d) but which
prove that the offender knew at the time of the commission of the
offence that the woman or girl was an idiot or imbecile,

shall be guilty of a misdemeanor, and being convicted thereof shall be

liable at the discretion of the Court to be imprisoned for any term not

exceeding two years with or without hard labour.'

By sect. 324 of the Lunacy Act, 1890 (53 & 54 Vict. c. 5) (e), ' If any

manager, officer, nurse, attendant, or other person employed in any

(z) Anon, stated by Willes, J., in R. v. (a) R. v. Fletcher, L. R. 1 C. C. R. 39.

netoher, Bell, 63, 70 ; and approved by (6) L. R. 2 0. C. R. 81.

the C. C. R. in that case. See R. v. Ryan, (c) Bell, 63 ; 28 L. J. M. C. 172.

2 Cox, 115. In R. v. Pressy [1867], 10 Cox,, (d) Vide ante, pp. 931 et seq.

635 (C. C.i R.), conTiction of rape on a (e) Re-enacting a. 82 of the Liinacy

female evidently idiotic was upheld, though Act, 1889. See Wood-Renton on Lunacy,

there was no evidence of resistance. p. 214.

3p2

948 Of Defilement or Corruption of Females, [book ix.

institution for lunatics (/) (including an asylum fo* criminal lunatics {g) )
or workhouse, or any person having the care or charge of any single patient,
or any attendant of any single patient, carnally knows or attempts to
have carnal knowledge of any female under care or treatment in the
institution or workhouse, or as a single patient (h), he shall be guilty of
a misdemeanor and on conviction on indictment, shall be liable to be
ihiprisoned with or without hard labour for any term not exceeding two
years ; and no consent or alleged consent of any such female thereto
shall be any defence to an indictment or prosecution for such offence ' (i).

Sect. III. — Unlawful Carnal Knowledge op Girls
UNDER Sixteen.

It is an essential element in the crime of rape that the carnal knowledge
should be without the previous consent of the female. There has been
much legislation to deal with corruption of young girls (/), which is
cumulative on the law as to rape and indecent assault (h). That now in
force is contained in the Criminal Law Amendment Act, 1885 (48 & 49
Vict. c. 69).

Girls under Thirteen. — By sect. 4 (Z), ' Any person who unlawfully
and carnally knows (m) any girl imder the age of thirteen years shall
be guilty of felony, and being convicted thereof shall be liable . . .
to be kept in penal servitude for hfe . . . (n).

(/ ) i.e., an asylum, hospital, or licensed
house (s. 341, ante, p. 925).

(g) See47&48Vict. c. 64.

(h) It is to be noted that the female is not
described as a lunatic, but as under care or
treatment; i.e., it is not the fact of lunacy,
but the fact of being under treatment that
takes away the power to consent and
creates the liability of the person in charge.

(i) Prosecutions for the offence can be
taken only as prescribed by s. 325, ante,
p. 929.

(j) By 18 Eliz. c. 7, carnal knowledge
of any woman-child under the age of ten
years was made felony without benefit of
clergy, without reference to the consent
or non-consent of the child, which was
therefore considered as immaterial. It
appears at one time to have been thought
that the carnal knowledge of a child above
the age of ten and under twelve years was
rape, though she consented : twelve years
being the age of consent in a female, and the
Statute Westm. 1, 13 Edw. I. o. 13, which
enacted, ' That none do ravish any maiden
within age, neither by her own consent nor
without,' being admitted to refer, by the
words, ' within age,' to the age of twelve
years. (1 Hale, 631, 2 Co. Inst. 180, 3 Co.
Inst. 60.) It"was, however, afterwards well
established that if the child was above ten
years old it was not a rape, unless it was
without her consent. Sum. 112,4 Bl. Com.
212, 1 East, P. C. 436. But children above
that age, and under twelve, were within the

protection of the Statute of Westm. 1,
c. 13, the law with respect to the carnal
knowledge of such children not having been
altered by either of the subsequent Statutes
of Westm. 2, Edw. I. o. 34, or 18 EUz. c. 7.
The Statute Westm. 1, c. 13, made the
deflowering a child above ten years old, and
under twelve, though with her own consent,
a misdemeanor punishable by two years'
imprisonment, and fine at the King's
pleasure (4 Bl. Com. 212, 1 East, P. C. 436).
These statutes were repealed by 9 Geo. IV.
c. 31 (E), and 10 Geo. IV. c. 34 (I). Those
Acts in turn were repealed in 1861, and
such offences against girls under ten were
made punishable by 24 & 25 Vict. c. 100,
ss. 50, 51, which were repealed in 1875 (38
& 39 Vict. c. 94) making the age twelve.
The Act of 1875 was repealed in 1885 (44 &
45 Vict. c. 69).

(k) See 48 & 49 Vict. o. 69, s. 16, and
ante, p. 6.

(I) This clause replaced 38 & 39 Vict,
c. 94, B. 3, raising the age from twelve to
thirteen.

(to) Proof of penetration is sufl&cient, and
it is not necessary to prove emission. R. v.
Marsden [1891], 2 Q.B. 149. Vide ante,
p. 933.

(«.) Now three years, 54 & 55 Vict. u. 69,
a. 1, ante, p. 211, or imprisonment with
or without hard labour for not more
than two years, ante, p. 212. The words
omitted are repealed.

CHAP. IX.] Of Unlawful Carnal Knowledge of Girls. 949

' Any person who attempts to have unlawful carnal knowledge of
any girl under the age of thirteen years shall be guilty of a misdemeanor,
and being convicted thereof shall be liable at the discretion of the Court
to be imprisoned for any term not exceeding two years, with or without
hard labour (o).

' Provided that in the case of an offender whose age does not exceed
sixteen years, the Court may, instead of sentencing him to any term of
imprisonment, order him to be whipped, as prescribed by the Whipping
Act, 1862 (p), and the said Act shall apply so far as circumstances
admit as if the offender had been convicted in manner in that Act
mentioned ; . . . ' (pp).

Unsworn Evidence. — [' Where upon the hearing of a charge under
this section, the girl in respect of whom the offence is charged to have
been committed, or any other child of tender years who is tendered
as a witness, does not, in the opinion of the Court or justices, understand
the nature of an oath, the evidence of such girl or other child of tender
years may be received, though not given upon oath, if, in the opinion of
the Court or justices, as the case may be, such girl or other child of tender
years is possessed of sufficient intelligence to justify the reception of the
evidence, and understands the duty of speaking the truth (q).

Corroboration. — 'Provided that no person shall be liable to be con-
victed of the offence unless the testimony admitted by virtue of this
section and given on behalf of the prosecution shall be corroborated by
some other material evidence in support thereof implicating the accused (r) :
Provided also, that any witness whose evidence has been admitted under
this section shall be liable to indictment and punishment for perjury
in all respects as if he or she had been sworn '] (rr).

On an indictment for felony under this section the defendant may be
convicted of an indecent assault (s), to which the consent of a girl under
thirteen is no defence (i), but not of a common assault (u). On an indict-
ment for the attempt, a verdict of indecent assault or, unless there were
consent, of common assault, would seem to be possible.

The consent of a child under thirteen is immaterial both as to the

(o) This clause replaced part of 24 & 25 section would support a conviction for

Viot. c. 100, s. 52, raising the age from indecent assault on an indictment for an

twelve to thirteen. The former enact- offence against sect. 4. R. ■;;. Wealand, 20

ments contained the word 'abuse,' not Q.B.D. 827. As to receiving unsworn

here re-enacted. See R. v. Dawson [1821], evidence on an indictment for indecent

3 Stark. (N. P.) 62. assault, see 8 Edw. VII. c. 67, ached. 1,

(p) Ante, p. 215. Imprisonment of ante, p. 924.

offenders of fourteen and under sixteen (r) Refusal by the defendant to submit

is restricted by the Children Act, 1908 to medical examination is not corroboration

(8 Edw. VII. 0. 67, s. 106, ante, p. 231). within this section, R. v. Gray, 68 J. P. 327.

The punishment by whipping being alter- Cf. R. v. Everest, 2 Cr. App. R. 130.

native to the other punishments for the (rr) The words in brackets were repealed

oSence, in the event of an appeal, there by 8Edw. VII.c. 67, s. 134,(as fromApril 1,

has been a difficulty as to detaining the 1909), as being superseded by the provisions

lad in custody during the time within of that Act, as to procedure and evidence

which he may appeal from his sentence (ante, p. 918) and punishment {ante, p. 230).

under the Criminal Appeal Act, 1907. (s) 48 & 49 Vict. u. 69, s. 9, ante, p. 941.

(vp) Words here omitted were repealed {t) 43 & 44 Vict. o. 45, post, p. 955.

by 8 Edw. VII. c. 67, h. 134. (m) See R. v. Catherall, 13 Cox, 109

(q) Unsworn evidence taken under this sed quoere.

950 Of Defilement or Corruption of Females, [book ix.

complete ofEence {v) and the attempt (w). But this enactment does
not exclude liability to prosecution for rape if the child did not in
fact consent (x) nor is proof of want of consent a ground for
acquittal («/).

A boy under fourteen cannot be convicted of the complete ofience
under 48 & 49 Vict. c. 69, s. 4 (yy), but on an indictment under that
section he may be convicted of an indecent assault (z). The consent of a
girl under thirteen is no defence to proceedings under sect. 4.

Under the repealed enactments as to abusing children of tender years
it was considered, ' that although a child between ten and twelve cannot
by law consent to have connection, so as to make that connection no
offence, yet, where the essence of the offence charged is an assault (and
there can be in law no assault, unless it be against consent) (a), this
attempt, though a criminal offence, is not an assault ; and the indictment
must be for an attempt to commit a felony, if the child is under ten years
old, and for an attempt to commit a misdemeanor, if the child is between
the ages of ten and twelve ; for it is perfectly clear that every attempt
(not every intention, but every attempt) to commit a misdemeanor is a
misdemeanor ' (b).

On this view on failure to jjrove commission of the full offence against
a girl above ten and under twelve it was held that the defendant could
not be convicted on other counts of the indictment charging (1) assault
with intent carnally to know ; (2) common assault. The judges considered
that as consent in fact had been proved there could not be a conviction
of assault and that the proper charge was attempt to commit the statutory
offence (c). In a later case, E. v. Guthrie (d), on an indictment under
24 & 25 Vict. c. 60, s. 51, containing a single count for the misdemeanor
of carnally knowing a girl between ten and twelve years of age, the
principal offence was not proved, but there was evidence of indecent
assault. The jury returned a verdict of common assault, which was held
good, the Court considering that the indictment charged an assault as a
distinct, separable offence. In E. v. Catherall (e) it was held that the

(v) See B. v. Neale, 1 Den. 36. child under ten, too young to be sworn as

(w) R. V. Beale, L. E. 1 0. C. R. 10. a witness. There was no evidence of

(a;) See E. v. Dicken, 14 Cox, 8, Mellor, consent or non-consent except medical

J. proof of marks of violence, which might

{y) R. V. Neale, 1 Den. 36. R. v. Ryland, have been inflicted by any foreign sub-

11 Cox, 101. R. V. Woodhouse, 12 Cox, stance.

443. (6) R. V. Martin, 9 C. & P. 215, Patteson,

(yy) R. V. Waite [1892], 2 Q.B. 600. J. R. v. Meredith, 8 C. & P. 589, Abinger,

(z) R. V. WilUams [1893], 1 Q.B. 320. C.B. E. v. Eeed, 1 Den. 377. Nor upon

(o) In E. V. Cookburn, 3 Cox, 543, an indictment for an indecent assault, R.

Patteson, J., said: 'My experience has w. Johnson, 10 Cox, 114; L. & C. 632 : 'The

shewn me that children of very tender age statutory offence may be committed though

may have vicious propensities. A child there is consent ; but if there is consent

under ten years of age cannot give consent there cannot be an assault, R. v. Guthrie,

to any criminal intercourse, so as to deprive L. R. 1 C. C. E. 24, 243, Bovill, C.J.

that intercourse of criminality ; but she (c) E. v. Martin, ubi siip. Consent would

can give such consent as to render the be no defence on such indictment. R. v.

attempt no assault. We know that a child Beale, L. R. 1 C. C. E. 10, 12, Pollock, C.B.

can consent to that which, without such {d) L. E. 1 C. C. R. 241. The indictment

consent, would constitute an assault.' And charged that G. ' did . . . make an assault

he refused to allow a conviction of assault and did carnally know and abuse.'

on an indictment for criminally knowing a (e) 13 Cox, 109.

CHAP. IX.] Of Unlawful Carnal Knowledge of Girls. 951

jury could not convict of common assault on an indictment charging the
felony, under 38 & 39 Vict. c. 93, s. 4 (rep.), of carnally knowing a girl
under twelve.

Upon an indictment for attempting to abuse (/) a child under the age
of ten, containing a count for a common assault, no proof was given of the
child being under ten years of age but it appeared that the prisoner made
an attempt on her, without any violence on his part, or actual resistance
on hers, and it was contended that as she offered no resistance it must
be taken that she consented, and therefore the prisoner must be acquitted.
Coleridge, J. : ' There is a difference between consent and submission ;
every consent involves a submission ; but it by no means follows that
a mere submission involves consent. It would be too much to say, that
an adult submitting quietly to an outrage of this description, was not
consenting ; on the other hand, the mere submission of a child, when
in the power of a strong man, and most probably acted upon by fear,
can by no means be taken to be such a consent, as will justify the
prisoner in point of law. You will therefore say whether the submission
of the prosecutrix was voluntary on her part, or the result of fear under
the circumstances in which she was placed. If you are of the latter
opinion, you will find the prisoner guilty on the second count of the
indictment' {g).

Carnal Knowledge of Girls of Thirteen and under Sixteen. — By sect. 5,
' Any person who (1) Unlawfully and carnally knows or attempts to have
unlawful carnal knowledge of any girl being of or above the age of
thirteen years and under the age of sixteen years \ . . . (h) shall be
guilty of a misdemeanor, and being convicted thereof shall be liable
at the discretion of the Court to be imprisoned for any term not exceeding
two years, with or without hard labour.

' Provided that it shall be a sufficient defence to any charge under
sub-section one of this section if it shall be made to appear to the Court
or jury before whom the charge shall be brought that the person so
charged had reasonable cause to believe that the girl was of or above the
age of sixteen years {i).

' Provided also, that no prosecution shall be commenced for an offence
under sub-section one of this section more than six (it) months after the
commission of the offence ' (Z).

Permitting Defilement of Girls under Sixteen. — By sect. 6, ' Any person
who, being the owner or occupier of any premises, or having, or acting
or assisting in, the management or control thereof, induces or knowingly
suffers any girl of such age as is in this section mentioned to resort to or
be in or upon such premises for the purpose of being unlawfully and

(/) This word is not in the existing the rule laid down in E. v. Prince, L. R. 2

enactment, vide ante, p. 948. C. C. R. 154, ante, p. 102, and fost, p. 959.

(g) R. V. Day, 9 0. & P. 722, Coleridge, (k) Six months was substituted for three

J Cf R. u. Guthrie, L. R. 1 C. C. R. 241. months by 4 Edw. VII. c. 15, s. 27. See

R. V. Lock, L. R. 2 C. C. R. 10. R. v. R. v. Chandra Dharma [1905], 2 K.B. 335.

Woodhouse, 12 Cox, 443, Lush, J. (I) As to commencement of prosecution,

(h) The portion omitted here is printed see R. v. West [1898], 1 Q.B. 74. R. v.

ante, p. 947. Beighton, 18 Cox, 535, and vide post. Vol. ii.

(i) This clause excludes the operation of p. 1930.

952 Of Defilement or Corruption of Females, [book ix.

carnally known by any man, whether such carnal knowledge is intended
to be with any particular man or generally (m),

' (1) shall, "if such girl is under the age of thirteen years, be guilty of
felony, and being convicted thereof shall be liable to be kept in penal
servitude for life, . . . (n); and

' (2) if such girl is of or above the age of thirteen and under the
age of sixteen years, shall be guilty of a misdemeanor, and being con-
victed thereof shall be liable at the discretion of the Court to be
imprisoned for any term not exceeding two years, with or without
hard labour.

' Provided that it shall be a sufficient defence to any charge under
this section if it shall be made to appear to the Court or jury before whom
the charge shall be brought that the person so charged had reasonable
cause to believe that the girl was of or above the age of sixteen years.'

On an indictment containing (1) a count for an offence under sect. 5,
(2) a count for an indecent assault, the defendant may be convicted of
common assault (o). But it would seem that on an indictment imder
sect. 5, there cannot be a conviction of indecent assault and common
assault if the girl consented to what was done, as 43 & 44 Vict. c. 45 does
not apply to a girl of thirteen or over.

A girl of thirteen or under sixteen cannot be convicted of aiding and
abetting the commission with herself of an ofience against sect. 5 (p).

Liability to pimishment under sect. 5 does not exempt from liabihty
to prosecution and punishment for rape if the girl did not consent : but
a person may not be twice punished in respect of the same transac-
tion ((/), or on an indictment under sect. 5, even if the facts proved
constituted a rape. It would seem that the accused might be convicted
of the misdemeanor under sect. 5, by virtue of 14 & 15 Vict. c. 100,
s. 12 (r).

Allowing Child or Young Person to be in Brothels. — By the Children
Act, 1908 (8 Edw. VII. c. 67), s. 16, ' (1) If any person having the
custody, charge, or oare of a child or young person between the ages
of four and sixteen, allows that child or young person (s) to reside in or
to frequent a brothel (t), he shall be guilty of a misdemeanor and shall be
liable on conviction on indictment or on summary conviction to a fine not
exceeding tv>enty-five founds, or alternatively or in default of payment
of such fine, or in addition thereto, to imprisonment, with or without
hard labour, for any term not exceeding six months (tt).

' (2) Nothing in this section shall affect the UabiHty of a person to be
indicted under section six of the Criminal Law Amendment Act, 1885

(m) Where an illegitimate girl lived with (p) R. v. Tyrrell [1894], 1 Q.B. 712 ;

her mother, and the premises, in respect of R. v. Ratcliffe, 10 Q.B.D. 74, decided on

which the charge was made, were her home 38 & 39 Vict. c. 94, s. 4 (rep.),
where she resided with her mother, it was {q) S. 16, vide ante, p. 6.

held that the mother could be convicted (r) Post, Vol. ii. p. 1965.

under the section. R. v. Webster, 16 (s) As introduced the bill applied only to

Q.B.D. 134. girls between 7 and 16.

(m) Nor less than three years, or to (t) As to definition of brothel, vide

imprisonment with or without hard Singleton v. Ellison [1895], 1 Q.B 607 ;

labour for not more than two years, ante, Durose v. Wilson, 70 J. P. 6, post. Vol. ii.

pp. 211, 212. The words omitted are p. 1893.
repealed. {tt) The accused may elect to be tried

(o) R. V. Bostock, 17 Cox, 700. on indiptment, vide ante, p. 17.

CHAP. IX.] Of Unlawful Carnal Knowledge of Girls. 953

(atUe, p. 951), but upon the trial of a person under that section it shall
be lawful for the jury, if they are satisfied that the accused is guilty
of an offence under this section, to find the accused guilty of such
offence.'

By sect. 17, ' (1) If any person having the custody, charge, or care of
a girl under the age of sixteen years causes or encourages the seduction
or prostitution of that girl, he shall be guilty of a misdemeanor and shall
be liable to imprisonment, with or without hard labour, for any term
not exceeding two years.

' (2) For the purposes of this section a person shall be deemed to
have caused or encouraged the seduction or prostitution (as the case
maybe) of the girl who has been seduced or become a prostitute if he has
knowingly allowed the girl to consort with or to enter or to continue
in the emplojnnaent of, any prostitute or person of known immoral
character.'

The procedure and evidence on trials for offences under ss. 16, 17
(sufra) is regulated by Part II. of the Children Act, 1908, ss. 27-38 [vide
p. 918 et seq.).

By sect. 18, ' (1) Where it is shewn to the satisfaction of a Court of
Summary Jurisdiction that a girl under the age of sixteen years is, with
the knowledge of her parent or guardian exposed to the risk of seduction
or prostitution, or living a life of prostitution, the Court may adjudge her
parent or guardian to enter into a recognisance to exercise due care and
supervision with respect of the girl.

' (2) The provisions of the Summary Jurisdiction Act, 1879, with
respect to recognisances to be of good behaviour, (including the provisions
as to the enforcement thereof,) shall apply to recognisances under this
section.'

Girls under Eighteen. — As to abduction of girls under eighteen with
intent that they shall be carnally known, see 48 & 49 Vict. c. 69, s. 7,
post, p. 967.

By the Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69),
sect. 12, ' Where on the trial of any offence under this Act it is proved
to the satisfaction of the Court that the seduction or prostitution of a
girl under the age of sixteen has been caused, encouraged, or favoured
by her father, mother, guardian, master, or mistress, it shall be in the
power of the Court to divest such father, mother, guardian, master, or
mistress of all authority over her, and to appoint any person or persons
willing to take charge of such girl to be her guardian until she has attained
the age of twenty-one, or any age below this as the Court may direct,
and the High Court shall have the power from time to time to rescind or
vary such order by the appointment of any other person or persons as
such guardian, or in any other respect.'

This provision is supplemented by the provisions of the Children
Act, 1908 (8 Edw. VII. c. 67, s. 26, ante, p. 918).

Indictment. — In indictments for offences against girls under sixteen
care should be taken to specify the age of the girl, in accordance with
the terms of the section on which the charge is founded, i.e. ' under the
age of thirteen years ' or ' of the age of thirteen years and under the age
of sixteen years,' for the description appears to be matter of substance,

954 Of Defilement or Corruftion of Females, [book ix.

and to amend the age might be to insert in the indictment an ofience
distinct from that originally charged (m).

Proof of Age.— The provisions of the Children Act, 1908, as to
presumption of the age of children {v) do not apply to offences under
the Criminal Law Amendment Act, 1885. Tt is therefore necessary in
prosecutions under sects. 4, 5 with respect to girls, to prove that the girl
against whom the offence is alleged to have been committed should be
proved by the prosecution to be under thirteen or under sixteen as the
case requires. The evidence of age should be clear and distinct. It is
usually given by producing a certified copy of the entry in the register
of births kept under the Births and Deaths Eegistration Act (w), coupled
with evidence of the identity of the girl with the child referred to in the
entry. The certificate is evidence of the date as well as the fact and
registration of the birth (x). It is immaterial whether the certified copy
emanates from the registry at Somerset House or from the district registry
or the office of the superintendent registrar of the district (w). But
production of the certificate is not essential, and the age may be proved
by any person who has sufficient knowledge of the facts (y).

Where the offence of carnally knowing a child under ten years of age
was charged to have been committed on February 5, 1832, and the only
evidence of the age of the child was given by the father, who stated that
in February, 1822, he went from home for a few days, and that his wife
had not then been confined, and that on his return on February 9, he
found the child had been born, and he was told by his wife's mother that
it had been born the day before ; the grandmother was alive at the time
of the trial, but the mother was dead. It was held that the evidence was
not sufficient, and that the grandmother ought to have been called, for
in a matter of so much importance the best evidence ought to be
adduced (z). On a similar indictment, evidence by the child herself that
she was ten years old on a particular day, her mother being ill at home,
and her father being unable to state the precise time of her birth, was held
insufficient (a). But on an indictment for carnally knowing a child under
ten years of age the mother stated that she had never kept any account
of the child's age, but that her knowledge of it was derived from hearing
her husband speak of it, and from conversation with him and the child,
and that it had been usual to keep the birthday of the child on February
7, and there was no other evidence of the age : it was objected that more
certain evidence of the age ought to have been produced, and R. v.
Wedge (supra) was relied upon ; Coltman, J., however, observed, that
' the evidence in that case was mere hearsay ; but this evidence went
much farther, and must be submitted to the jury as some evidence,
though open to observation, as to the child's age (h).

(tt) See R. V. Shott, 3 0. & K. 206, Maule, disapproved.
J. R. V. Martin, 9 C. & P. 215, Patteaon, (y) R. v. Cox [1898], 1 Q.B. 179 : where

J. Cf. K. V. Benson [1908], 1 K.B. 270, the age was proved by a mistress of an

as to hmits of amendment under 14 & 15 elementary school at which the child

Vict. 0. 100, s. 1. attended.

(v) 8 Edw. VII. c. 67, s. 123, ante, ^. 922. (z) R. v. Wedge, 5 C. & P. 298 and

{w) R. V. Weaver, L. R. 2 C. C. R. 85. MS. C. S. G., Taunton and Littledale, J J.

(x) Re Goodrich [1904], Prob. 138, in (o) R. v. Day, 9 C. & P. 722, Coleridge, J.

which Be Wintle, L. R. 9 Eq. 373, was (6) R. v. Hayes, 2 Cox, 226.

CHAP. IX.] Indecent Assault on Females. 955

Where the mother of a child swore that she was ten years old last
March, but did not know the year and month of the child's birth, and in
cross-examination gave confused and inconsistent answers as to the age
of her children, it was held that there was some evidence for the jury
as to the age of the child (c).

As to taking the evidence of the person charged and of the husband
and wife of the person charged, see 48 & 49 Vict. c. 69, s. 20 {d), 61 & 62
Vict. c. 36, ss. 1, 4, and 8 Edw. VII. c. 67, s. 27, and fost, Book XIII.
Chapter V. ' Evidence.'

Sect. IV. — Indecent Assault on Females.

Indecent Assault.— By 24 & 25 Vict. c. 100, s. 52, ' Whosoever shall
be convicted of an indecent assault upon any female . . . (e) shall be
liable at the discretion of the Court to be imprisoned for any time not
exceeding two years with or without hard labour.'

As to conviction of indecent assault on an indictment for rape or
felonious carnal knowledge of a girl under thirteen, see ante, p. 941 (/).

By the Children Act, 1908 (8 Edw. VII. c. 67), s. 127 (2), Courts of
Summary Jurisdiction are empowered to try adults for indecent assault
on a female who in the opinion of the Court is under sixteen, if the defend-
ant consents, vide 42 & 43 Vict. c. 49, s. 12. The maximum punishment
on summary conviction for the offence is six months' imprisonment.

By 43 & 44 Vict. c. 45, ' It shall be no defence to a charge or indictment
for an indecent assault on a young person (g) under the age of thirteen
to prove that he or she consented to the act of indecency Qi). In cases
of indecent assault on females of thirteen or over the defence of consent
is still available. The section applies to England and Ireland. (See
sect. 3.)

Sect. V. — Procuring the Defilement or Prostitution of
Women and Girls.

Proeuration.^By the Criminal Law Amendment Act, 1885 (48 & 49
Vict. c. 69), sect. 2, ' Any person who, (1) Procures or attempts to procure
any girl or woman under twenty-one years of age, not being a common
prostitute, or of known immoral character, to have unlawful carnal
connection, either within or without the King's dominions, with any
other person or persons ; or (2) Procures or attempts to procure any
woman or girl to become, either within or without the King's dominions,
a common prostitute ; or (3) Procures or attempts to procure any woman

(d) This section was in R. v. Owen, 20 {f) A boy under fourteen who is indicted
Q.B.D. 829, held to render a person charged under 48 & 49 Vict. o. 69, s. 4 (ante, p. 950)
with indecent assault competent as a witness for carnally knowing a girl under thirteen
in his own behalf. may on that indictment be convicted of

(e) The words omitted relating to indecent assault. R. v. Williams [1893],
attempts to have carnal knowledge of 1 Q.B. 320.

girls under twelve were repealed in 1885, (g) Of either sex, vide post, p. 975.

48 & 49 Viot. 0. 69, s. 19. On proceedings (h) This enactment overrides the rulings

under ». 52, for indecent assault on a in R. v. Read, 1 Den. 377. R. v. Johnson,

female under sixteen, the unsworn evidence L. & C. 632. R. v. Lock, L. E. 1 C. C. R. 10.

of a child is admissible, 8 Edw. VII. c. 67, R. v. Roadley, 14 Cox, 463 (C. 0. R.).
s. 30 (ante, p. 919), which overrides R. v.

956 Of Defilement or Corruption of Females, [book ix.

or girl to leave the United Kingdom, with intent that she may become
an inmate of a brothel elsewhere ; or (4) Procures or attempts to procure
any woman or girl to leave her usual place of abode in the United Kingdom
(such place not being a brothel), with intent that she may, for the purposes
of prostitution, become an inmate of a brothel within or without the
King's dominions, shaU be guilty of a misdemeanor, and being convicted
thereof shall be liable at the discretion of the Court to be imprisoned
for any term not exceeding two years, with or without hard labour ' (i).
Corroboration. — ' Provided that no person shall be convicted of any
offence under this section upon the evidence of one witness, unless
such witness be corroborated in some material particular by evidence
implicating the accused/ (Vide post, Book XIII. Chapter V.)

Defilement by Threats, Fraud, or Drugs.— By sect. 3, ' Any person
who, (1) By threats or intimidation procures or attempts to procure any
woman or girl to have any unlawful carnal connection, either within or
without the King's dominions ; or (2) By false pretences or false represen-
tations procures any woman or girl, not being a common prostitute (j)
or of known immoral character, to have any unlawful carnal connection,
either within or without the King's dominions ; or (3) Applies, administers
to, or causes to be taken by any woman or girl any drug, matter, or thing,
with intent to stupefy or overpower so as thereby to enable any person
to have unlawful carnal connection with such woman or girl, shall be
guilty of a misdemeanor, and being convicted thereof shall be liable at
the discretion of the Court to be imprisoned for any term not exceeding
two years, with or without hard labour ' (k).

Corroboration. — ' Provided that no person shall be convicted of an
offence under this section upon the evidence of one witness only, unless
such witness be corroborated in some material particular by evidence
implicating the accused.' (See post, Book XIII. Chapter V.)

Detention in Brothels. — By sect. 8, ' Any person who detains any
woman or girl against her will, (1) In or upon any premises with intent
that she may be unlawfully and carnally known by any man, whether
any particular man or generally (l) ; or (2) In any brothel, shall be guilty
of a misdemeanor, and being convicted thereof shall be liable at the
discretion of the Court to be imprisoned for any term not exceeding
two years, with or without hard labour.

' Where a woman or girl is in or upon any premises for the purpose
of having any unlawful carnal connection, or is in any brothel, a person
shall be deemed to detain such woman or girl in or upon such premises
or in such brothel, if, with intent to compel or induce her to remain in
or upon such premises or in such brothel, such person withholds from
such woman or girl any wearing apparel or other property belonging to her,
or, where wearing apparel has been lent or otherwise supplied to such

(») Aa to acta of procuration outside the King's dominions. R. v. Gold and Cohen

King's dominions, see R. v. Blythe [1895], [1907], 71 J. P. 360, Bosanquet, C.S.

1 Canada Cr. Cas. 263. Re Gertie Johnson, {k) Sub-s. 3 supplements the provisions

[1904], 8 Canada Cr. Cas. 243. of 24 & 25 Vict. o. 100, s. 22, ante, p. 863.

(j) There can be no conviction of the See 48 & 49 Vict. c. 69, s. 16, and onfe, pp. 4, 6.

attempt if the woman was already a {I) As to girls under sixteen, see 48 &

prostitute when the attempt is commenced 49 Vict. o. 69, s. 6, ante, p. 952. 8 Edw.

to procure her to become one without the VII. o. 67, ss. 16, 17, ante, pp. 952, 953.

CHAP. IX.] Procuring the Defilement of Women and Girls. 957

woman or girl by or by tie direction of such person, such person threatens
such woman or girl with legal proceedings if she takes away with her
the wearing apparel so lent or supplied.

'No legal proceedings, whether civil or criminal, shall be taken
against any such woman or girl for taking away or being found in posses-
sion of any such wearing apparel as was necessary to enable her to leave
such premises or brothel.'

Search Warrant.— By sect. 10, ' If it appears to any justice of the
peace, on information made before him on oath by any parent, relative,
or guardian of any woman or girl, or any other person who, in the opinion
of the justice is bona fide acting in the interest of any woman or girl, that
there is reasonable cause to suspect that such woman or girl is unlaw-
fully detained for immoral purposes by any person in any place within
the jurisdiction of such justice, such justice may issue a warrant (m)
authorising any person named therein to search for, and when found, to
take to and detain in a place of safety such woman or girl until she can
be brought before a justice of the peace ; and the justice of the peace
before whom such woman or girl is brought may cause her to be
delivered up to her parents or guardians, or otherwise dealt with as
circumstances may permit and require.

' The justice of the peace issuing such warrant may, by the same or
any other warrant (n), cause any person accused of so unlawfully detaining
such woman or girl to be apprehended and brought before a justice, and
proceedings to be taken for punishing such person according to law.

' A woman or girl shall be deemed to be unlawfully detained for
immoral purposes if she is so detained for the purpose of being unlawfully
and carnally known by any man, whether any particular man or generally,
and (a.) Either is under the age of sixteen years ; or (b.) If of or over
the age of sixteen years, and under the age of eighteen years, is so detained
against her will, or agains't the will of her father or mother or of any other
person having the lawful care or charge of her ; or (c.) If of or above the
age of eighteen years is so detained against her will. Any person
authorised by warrant under this section to search for any woman or
girl so detained as aforesaid may enter (if need be by force) any house,
building or other place specified in such warrant, and may remove such
woman or girl therefrom.

* Provided always, that every warrant issued under this section shall
be addressed to and executed by some superintendent, inspector, or other
officer of police, who shall be accompanied by the parent, relative, or
guardian or other person making the information, if such person so
desire, unless the justice shall otherwise direct.'

A conspiracy by false pretences to procure a female under the age of
twenty-one years to have illicit carnal connection with a man has been
held to be an indictable misdemeanor at common law (o).

(m) The act of the justice in issuing such counts were framed on 12 & 13 Viot. c. 76,

warrants is a judicial act. Hopew. Evered, which was repealed in 1891 (S. Lv R.), but

17 Q.B.D. 336. Lea v. Oharrington, 23 no opinion was expressed as to them. R.

Q.B.D. 45. V. Delaval, 3 Burr. 1434, was referred to

(n) See ante, note (m). by the Court. Vide ante, p. 158, tit. ' Con-

(o) R. V. Mears, 2 Den. 79. The first spiracy.'

( 958o )

CANADIAN NOTES.

OF RAPE, AND OF THE DEFILEMENT OR COREUPTION OF FEMALES.

Sec. 1. — Of Bape, Definition of. — Code sec. 298.

Carnal Knowledge. — Code see. 7.

Female Under Fourteen. — An 'indictment for rape lies against
one who has ravished a female iinder the age of fourteen years against
her will, notwithstanding the provisions of see. 301, which enacts that
everyone is guilty of an indictable offence and liable to imprison-
ment for life, and to be whipped, who carnally knows any girl imder
the age of fourteen years, not being his wife. -R. v. Riopel (1898),
2 Can. Cr. Gas. 225.

Consent. — By Child Under Fourteen, not a Defence. — Code sec.
294. ••

Consent. — It has been held that, in the case of alleged rape on an
idiot or lunatic the mere proof of connection will not warrant the ease
being left to the jury; that there must be some evidence that it was
without her consent, e.g., that she was incapable, from imbecility, of
expressing assent or dissent ; and that if she consent from mere animal
passion it is not rape. R. v. Connolly (1867), 26 U.C.Q.B. 317.

The question whether the act of connection was consummated
through fear, or merely through solicitation is a question of fact for
the jury. R. v. Day (1841), 9 C. & P. 722; R. v. Jones (1861), 4
L.T.N.S. 154; R. V. Cardo (1889), 17 Ont. R. 11.

Evidence of complaint made by the woman on a charge of rape as
corroborative of non-consent will be rejected if made only in answer to
questions suggesting the guilt of the accused. The King v. Dunning,
14 Can. Cr. Cas. 461.

Proof on behalf of the defence that the injured party or her
parents had instituted civil proceedings to recover damages arising
from the commission of the alleged rape is properly excluded upon
the criminal trial as irrelevant, unless other facts have been disclosed
in evidence which tend to shew an intent to thereby wrongfully extort
money from the accused. R. v. Riendeau (1900), 3 Can. Cr. Cas. 293.

On a charge of rape evidence is admissible on behalf of the defence
to contradict a statement of the complainant, made on her cross-
examination, denying that, on an occasion when she met the accused
subsequent to the alleged rape, she had refused to put an end to the
interview, as requested by her mother, and had struck her mother for

958& Rape, etc. [book I2£t

the latter 's interference. Such evidence is relevant to the charge not
only as affecting the credibility of the complainant's testimony geil«
erally, but as shewing conduct inconsistent with resistance to thfi
alleged offence. R. v. Riendeau (No. 2), 4 Can. Cr. Cas. 421 (Que.)>

The prisoner's statement made at .a previous trial through hls
counsel may be given in evidence by the prosecution if it tends t6
anticipate a possible defence which might be offered by the prisondl^i
R. V. Bedere (1891), 21 O.R. 189.

Questions may be put to the complainant tending to elicit the fa(Jt
that she had previously had connection with other men. So "whei^e
the prosecutrix, after she had declared she had not previously had
connection with a man other than the prisoner, was asked in crossl'
examination whether she remembered having been in the milk hou^B
of Gr. with two men, D.M. and B.M., one after the other. Held, that
the witness may object, or the Judge, may, in his discretion, tell thS
witness she is not bound to answer, the question. R. v. Lalibertft
(1877), 1 Can. S.C.R. 117.

The weight of authority and the course of practice by the JudgeB
in England is to permit questions of the kind to be asked of a wit»
ness on cross-examination in oases of rape. The prosecuting ofScei?
is not permitted to. raise the objection. The witness may object, or
the Judge may tell the witness she is not obliged to answer, if he
thinks proper, though not bound to do so, and the Judge will decide
whether the witness is obliged to answer or not, when the point is
raised. R. v. Laliberte(1877), 1 Can. S.C.R. 117, 131, per Richards, C.J.

In the same ease prisoner's counsel afterwards proposed to ask one
of the witnesses for the defence: "Did you see the prosecutrix with
D.M. and B.M. ? if you have, please state on which occasion, and
what were they doing?" This question was also disallowed by the
Judge, and the objection was sustained in the Supreme Court of
Canada on the authority of R. v. Cockroft (1870), 11 Cox Cr. Cas.
410, and R. v. Holmes (1871), L.R. 1 C.C.R. 234, upon the principle
that a witness cannot be contradicted in matters foreign to the issue,
which, on the trial of this indictment was, not whether the prosecu-
trix was unchaste, but whether the prisoner had had connection with
her by violence. R. v. Laliberte (1877), 1 Can. S.C.R. 117, 142.

Evidence is admissible for the defence of the general bad reputa-
tion of the prosecutrix for unchastity. R. v. Bishop (1906), 11 Can.
Cr. Cas. 30.

Where two prisoners are jointly indicted but an order is made
for their separate trial, the one is an admissible witness for the
other and is bound to testify although he may prevent his evidence
being used against himself at his subsequent trial. Only the person
then on trial is a "person charged" within the meaning of the Canada
Evidence Act, sec. 4, and cominent is not prohibited as to the failure

CHAP. IX.] Evidence of Complaint. 958c

of the accused to call as a witness the person jointly indicted with him
but whose trial has been ordered to be separate. The King v. Blais,
10 Can. Cr. Gas. 354, 11 O.L.R. 345.

On a charge of aiding and abetting another to commit rape if it
appears that a man called as a witness for the prosecution had im-
mediately prior to the offence been in the company of the prosecu-
trix under circumstances making it probable that he had had illicit
connection with her, and that the man accused of the rape had taken
the prosecutrix away from the witness, the witness may be cross-
examined as to his relations with the prosecutrix for the purpose of
shewing prejudice against the accused, and for this purpose is bound to
answer whether he had had connection with the prosecutrix on that
occasion. And where the witness refused to answer as to his con-
nection with the prosecutrix and the trial Judge upheld his refusal,
and the prosecutrix also refused to answer as to same, but the guilt
of the accused was corroborated by independent testimony. Code sec.
1019 may be applied to uphold the conviction on the ground that
no substantial wrong has been occasioned by the ruling. The King v.
Finnessey, 10 Can. Cr. Cas. 347.

Evidence of Fresh Complaint. — Upon the trial of a charge of rape
the whole statement made by the woman by way of complaint shortly
after the alleged offence; including the name of the party com-
plained against and the other details of the complaint, is admissible
in evidence as proof of the consistency of her conduct and as con-
firmatory of her testimony regarding the offence, but not as in-
dependent or substantive evidence to prove the truth of the charge.
Whether or not the complaint was made within a time sufficiently
short after the commission of the offence as to admit evidence of the
particulars of the complaint, is a question to be decided by the Court
under the circumstances of the particular case ; but it is nevertheless
the province of the jury to take into consideration the time which
intervened in weighing the probability of its truth. R. v. Riendeau
(1901), 4 Can. Cr. Cas. 421, 10 Que. K.B. 584.

Upon a charge of rape, statements made by the complainant to a
police officer on the day after the offence was alleged to have been
committed and in response to his inquiries, the complainant having
on the day of the offence complained to others of an assault but not
of rape, are not admissible in evidence either as part of the res gestce
or as in corroboration. But if the jury acquit the accused of that
offence but find him guilty of indecent assault, the verdict should
stand notwithstanding the improper admissions in evidence of state-
ments so made by the complainant after the alleged offence, if the
other evidence in the case is ample to warrant the verdict of indecent
assault. R. v. Graham (1899), 3 Can. Cr. Cas. 22 (Ont).

958d Rape, etc. [book ix.

Where the complainant makes a statement to a third party, not
in the presence of the accused, such statement may be given in evi-
dence, provided it is shewn to have been made at the first oppor-
tunity which reasonably offered itself after the commission of the
offence, and has not been elicited by questions of a leading and in-
ducing or intimidating nature. R. v.,Spuzzum (1906), 12 Can. Cr.
Cas. 287.

"Where the depositions at the preliminary enquiry on which an
indictment for rape is founded shew that the statements of the prose-
cutrix relied upon by the Crown to shew a complaint were not made
spontaneously, but in answer to questions by the police ofleer, evi-
dence of the answers so made is admissible against the accused at the
trial. K. v. Bishop (1906), 11 Can. Cr. Cas. 30.

Indictment. — A prosecution for rape is in fact and in substance
a prosecution for any offencp of which, on an indictment for rape,
the prisoner could have been found guilty ; and the maxim Omne ma jus
continet in se minus applies. R. v. West, [1898] 1 Q.B. 174; R. v.
Edwards (1898), 2 Can. Cr. Cas. 96.

An indictment may now be laid under Cr. Code sees. 856 and 951
charging rape and also assault with intent to commit rape.

Attempted Rape. — Code sec. 300.

Capacity. — ^A boy under fourteen is incapable of committing rape,
but Code sec. 72 would seem to render such a boy liable to punish-
ment for an attempt to commit rape.

Jurisdiction to Try. — ^Although a County Court Judge in the
Province of New Brunswick has no jurisdiction to try this offence,
he may proceed to try the offence of attempting to have carnal
knowledge of a girl under fourteen (Cr. Coc^e 302), although the
evidence discloses the offence of attempting to commit rape. Code
sec. 583; R. v. Wright (1896), 2 Can. Cr. Cas. 83. The same rule
applies to restrict the jurisdiction of Courts of general sessions. See.
583.

Section 296 of the Code includes as an indictable offence for
which two years' imprisonment may I be imposed, the case of any one
assaulting any person "with intent to conimit .any indictable offence,"
but would probably be held to be exclusive of the offence of assault
with intent to commit rape, which is in itself, under the decision in
John V. The Queen, 15 Can. S.C.R. 384, an attempt to commit rape.
But see R. v. Preston, 9 Can. Cr. Cas. 201.

After a commitment upon a charge of "unlawful assault with in-
tent to carnally know,'.' the accused cannot insist upon a trial, with-
out a jury under the Speedy Trial Clauses if the Crown express
an intention of indicting him for an attempt to commit rape, which
latter offence is beyond the jurisdiction of a County Judge's Criminal

CHAP. IX. J Attempts to Commit Rape. 958e

Court and is disclosed on the depositions returned. R. v. Preston
(1905), 9 Can. Cr. Cas. 201 (B.C.).

On the trial for an attempt to commit rape if the only issue in-
volved is as to the identity of the prisoner, it is unnecessary for the
trial Judge to point out to the jury that the law permits the finding
of a lesser offence than the one charged. R. v. Clarke (1907), 12 Can.
Cr. Cas. 300 (N.B.).

Evidence of Complaint. — On "the trial of an indictment for an at-
tempt to commit rape statements of the person assaulted, .and of
her companion present at the beginning of the assault, made to police
officers, some four hours after the assault ; and that they had given
a description of the assailant, but not stating what the description
was ; and evidence of the officers that in consequence of such descrip-
tion they had looked for the assailant, were properly received, al-
though statements of a like character had previously been made to
other persons. And where the prosecutrix on cross-examination had
stated that she had given a description of her assailant in the presence
of her father, and that in consequence of such description her father
had suspected a person other than the prisoner, the Crown was pro-
perly allowed to prove by the father what the description was that his
daughter had given in his presence. R. v. Clarke (1907), 12 Can. Cr.
Cas. 300 (N.B.).

Punishment for Attempt. — Code sec. 300.

Sec. 2. — Of Unlawful Carnal Knowledge of Idiots, Imbecile and
Lunatic Females. — Code sec. 219.

Corroborative Evidence Essential — Code sec. 1002.

Sec. 3. — Of Unlawful Carnal Knowledge of Girls Under Pour-
teen. — Code sec. 301.

Capacity. — The common law presumption of the physical' incapa-
city of a boy under fourteen to have carnal knowledge would be a
defence to a charge of this offence. R. v. Hartlen, 2 Can. Cr. Cas. 12.

Unsworn Evidence by Girl Under Fourteen. — Code sec. 1002.

Canada Evidence Act.—R.B.G. (1906) ch. 145.

Consent. — Carnal knowledge alone constitutes an offence under
this section when the girl is under the age of fourteen and her con-
sent to the act is not a defence. R. v. Brice, 7 Man. R. 627; R. v.
Chisholm, 7 Man. R. 613.

When there has been no violence, and the girl is under fourteen
and has consented or complied, the offence falls under art. 301 ; but
when there has been violence, and when the girl has not consented,
then, notwithstanding the fact that the girl is under fourteen years
of age, the crime is rape, and falls under sec. 298. R. v. Riopel (1898) ,
2 Can. Cr. Cas. 225, 228. The word "man" and "woman" in this
section are to be taken in a general or generic sense as indicating all

958f Rape, etc. [book ix.

males and females of the human race, and not in a restricted sense
as distinguished from boys and girls. R. v. Riopel (1898), 2 Can.
Cr. Cas. 225.

Indictment. — The words "not being his wife" in sec. 301, pro-
viding for the offence of defiling children under fourteen, is an excep-
tion, the failure to negative which in the indictment will not invalid-
ate a conviction thereon where no objection was taken before pleading.
The King v. Wright, 11 Can. Cr. Cas. 221.

The offence of carnal knowledge of a girl under fourteen years in-
cludes the offence of indecent assault, and a trial for the greater
offence is a trial also for the lesser offence included therein, and
the accused may, although found not guilty of the greater offence, be
convicted for such lesser offence, if proved, under the same charge
or indictment. R. v. Cameron (1901), 4 Can. Cr. Cas. 385 (Ont). A
police magistrate trying an accused with his consent summarily, upon
the charge of carnal knowledge, has the same power to convict of
the lesser offence as a Court of general sessions would have upon a
trial under an indictment. Ibid. And an acquittal by the police
magistrate on such summary trial is a bar to a charge upon a fresh
information for indecent assault in respect of the same occurrence.
Hid. An indictment for rape under sees. 298 and 299 lies against
one who has ravished a female under the age of fourteen years against
her will, notwithstanding this section. R. v. Riopel (1898), 2 Can.
Cr. Gas. 225; R. v. Ratcliffe (1882), 15 Cox C.C. 127; R. v. Dicker
(1877), 14 Cox C.C. 8.

Section 951 authorizes a verdict of indecent assault, the consent
of a girl under fourteen not being material to that offence; sec.
294; R. V. Cameron (1901), 4 Can. Cr. Cas. 385 (Ont.) ; or if the com-
plete commission of the offence under sec. 301 is not proved, but the
evidence establishes an attempt to commit the offence, the accused
may be convicted of such attempt and pimished accordingly. Sec.
949.

Attempt to Have Carnal Knowledge. — Code sec. 302.

The presumption of physical incapacity by a boy under fourteen
to have carnal knowledge would seem to be over-ridden in reference to
this and similar offences by Code sec. 72.

Corroboration. — Upon the trial of a charge of attempted carnal
knowledge of a girl under fourteen who is too young to imderstand
the nature of an oath, a conviction for that offence is not warranted
unless her evidence not under oath is corroborated by some other,
material evidence implicating the accused (Code sec. 1003), but the
accused may be convicted of common assault upon the charge so laid
if there be corroboration merely by some other material evidence (Can.
Evidence Act, see.l6) . The King v. De Wolfe, 9 Can. Cr. Cas. 38.

CHAP. IX. J Indecent Assault. 958g

Aim. — It is misdirection entitling the accused to a new trial for the
trial Judge to charge the jury that the onus is upon the accused to
prove an alibi set up in defence by a preponderance of testimony. The
King V. Myshrall, 8 Can. Cr. Cas. 474, 35 N.B.R. 507.

Jurisdiction. — See note to sec. 300.

Proof of Age. — See sec. 984.

Excluding Public from Court Boom. — See sec. 645.

Sec. 4. — Indecent Assault on Females. — Code see. 292.

Punishment. — Under this section everyone found guilty of an
indecent assault on a female is liable to two years' imprisonment and
to be whipped ; but the Court in many cases, acting under the discre-
tion conferred by the special proviso contained in sec. 1028 of the
Code, does not inflict the whipping, and imposes only an imprison-
ment. R. V. Robidoux (1898), 2 Can. Cr. Cas. 19.

Complaint. — In an Ontario case it has been held that in a civil
action for damages under circumstances constituting the criminal
offence of indecent assault, evidence is admissible of complaint made
by the woman shortly after the assault was committed, in like manner
as upon a criminal trial; and that complaint made by the woman to
her husband, on her first meeting him some hours after the assault,
but on the same day, was admissible in evidence under the circum-
stances of the case. The proof of such complaint by the evidence of
both the woman and her husband is corroborative of the woman's
evidence that she did not consent to the acts complained of. Hopkin-
son V.' Perdue, 8 Can. Cr. Cas. 286. Where evidence of complaint
is admissible on a charge of indecent assault, not only the fact' of
complaint may be shewn, but the particulars of the complaint. Ibid.

It is essential in all cases of indecent assault that complaint should
have been made at the earliest opportunity after the offence, and evi-
dence of such complaint may, under special circumstances, be received
after the lapse of several days' delay. The fact of the girl being only
seven years of age, that the act was committed without violence and
that the girl did not realize the serious nature of the act, are cir-
cumstances which make a complaint made ten days afterwards admis-
sible in evidence. R. v. Barron (1905), 9 Can. Cr. Cas. 196 (N.S.).

Under exceptional circumstances evidence of a complaint made by
an adult female of an indecent assault may be admitted although five
days had intervened between the assault and the complaint. R. v.
Smith (1905), 9 Can. Cr. Cas. 21 (N.S.).
Corroboration. — Code sec. 1002.

Sec. 5. — Of Procuring the Defilement of Women.
Conspiring by False Pretenses to Induce Woman to Commit Adul-
tery.— Code sec. 218.

Householder Permitting Defilement. — Code sec. 217.

958/1. Rape, etc. [book ix.

Corroboration. — Code see. 1002.

On a charge of allowing a girl under 18 to be upon premises for
immoral purposes, the evidence of the girl proving that she shared
with the proprietor the money she obtained by prostitution there car-
ried on, is sufficiently corroborated under Code sec. 1002, by the evi-
dence of another witness tending to shew that the place was a bawdy
house. The King v. Brindley (1903), 6 Can. Cr. Cas. 196.

Limitation of Prosecution. — Code sec. 1140(c).

Parent or Guardian Procuring or Party to Defilement of Girl or
Woman. — Code sec. 215.

Punishment for —

(a) Procuring girl for defilement. Code sec. 216.

(&) Enticing girl to house of ill-fame. Code sec. 216.

(d) Procuring girl to leave Canada to become prostitute. Code

sec. 216.

(e) Procuring girl to enter Canada to become prostitute. Code

sec. 216.
(/) Procuring girl to leave her abode to become prostitute.

Code see. 216.
(gr) Procuring carnal connection by threats. Code sec. 216.

Procuring carnal coneetion by false pretenses. Code sec. 216.
(A.) Administering drugs to enable unlawful carnal connection.
Code sec. 216.
Void Conviction. — ^A conviction for "unlawfully procuring or at-
tempting to procure" a girl to become a prostitute, is void for dupli-
city and for uncertainty. K v. Gibson (1898), 2 Can. Cr. Cas. 302.
Limitation. — Code sec. 1140(c).
C or rob or ation. ^C ode sec. 1002.

In E. V. McNamara (1891), 20 O.R. 489, it was held that it is
admissible to prove in corroboration of the woman's evidence, that the
house to which the prisoner had taken her had the general reputation
of being a bawdy house; (Gait, C.J., Rose and MacMahon, JJ.).

Inducing to Come from Abroad. — Upon a charge of procuring a
girl to come to Canada from abroad with intent that she may become
an inmate of a brothel in Canada, the acts of inducement must be
shewn to have been committed in Canada to give jurisdiction to a
Canadian Court, unless the accused is a British subject. Re Gertie
Johnson, 8 Can. Cr. Cas. 243.

Search Warrant for Girl in House of Ill-fame. — Code sec. 640.
Conspiracy to Defile. — Code sec. 218.

( 959 )

CHAPTEE THE TENTH.

OF ABDUCTION 01' FEMALES.

Common Law. — It appears not to be an indictable offence at common
law for a man to marry a woman under age, without the consent of her
father or guardian (a). But 'children might be taken from their parents
or guardians by violence, conspiracy, or other improper practices in such
a way as would render the act an offence at common law, though the
parties themselves might be consenting to the marriage {b).

Various forms of abduction of wards and women have been made the
subject of legislation from the time of Henry III. (Statute of Merton)
down to 1885 (c). The enactments still effectively in force are as follows :

Abduction of Girls under Sixteen.— Bv the Offences against the
Person Act, 1861 (24 & 25 Vict. c. 100), s. 55, ' Whosoever shall unlaw-
fully take or cause to be taken any unmarried girl, being ander the age
of sixteen years, out of the possession and against the will of her father or
mother, or of any other person having the lawful care or charge of her,
shall be guilty of a misdemeanor, and being convicted thereof shall be
liable, at the discretion of the Court, to be imprisoned for any term not
exceeding two years, with or without hard labour ' (d). The provisions of
the Children Act, 1908, Part II. apply to offences under this section {dd).

It is no defence to an indictment under this section that the girl
looked over sixteen, or told the defendant that she was over sixteen, or
that he bona fide and reasonably believed her to be over sixteen (e), or

(a) 1 East, P. C. 458. constitute a crime, if the result were as he

(i) Id. ibid. p. 459. And see in 3 Chit. anticipated, but in which the result may

Cr. L. 713, a precedent of an information not improbably end by bringing the offence

for a misdemeanor, in procuring a marriage within a more serious class of crime. As

with a minor, by false allegations. See if a man strike with a dangerous weapon

R. V. Lord Grey [1682], 9 St. Tr. 127. 1 \vith intent to do grievous bodily harm, and

East, P. C 460. This case was in the nature Idlls. The result makes the crime murder,

of ravishment of ward, and Wright (on The prisoner has run the risk. So if a

Conspiracy, p. 106) considers it not to be prisoner do the prohibited acts without

a case of conspiracy at all, vide ante, p. 158. caring to consider what the truth is as to

Law, ii. 363, 435. girl under sixteen, without caring to con-

{d) Taken from 9 Geo. IIL c. 31, s. 20 sider whether she was in truth under

(E), and 10 Geo. IV. c. 34, s. 24 (I). These sixteen. He runs the risk. So if he,

enactments reproduced an earlier statute, without abduction, defiles a girl who is in

4 & 5 Ph. & M. 0. 8. fact under ten years old, with a belief that

(dd) Vide ante, pp. 918-924. she is between ten and twelve. " If the facta

(e) B. V. Prince, L. R. 2 C. C. B. 154. were as he believed, he would be committing

This case was not argued for the prisoner. the lesser crime. Then he runs the risk ot

Brett, J., the only dissentient judge, said : his crime resulting in the greater crime.

' Upon all the cases I think it is proved that It is clear that ignorance of the law does not

there can be no conviction for crime in excuse. It seems to me to follow that the

England in the absence of a criminal mind maxim as to mens rea applies whenever the

or mens rea. Then comes the question, facts which are present to the prisoner's

what is the true meaning of the phrase ? mind, and which he has reasonable groimds

I do not doubt that it exists where the to believe, and does believe, to be the facts,

prisoner knowingly does acts which would would, if true, make his acts no criminal

960

Of Abduction of Females.

[BOOK IX.

had no means of ascertaining her age (/). He is bound at his peril to
find out her age (gr).

The enactment seems to extend to the taking of a natural daughter
from the care and custody of her putative father Qi), or from the mother,
though she has married again, and the second husband has assented to the
taking away {i).

Unlawfully. — The enactment does not require the presence of a
corrupt motive or particular intent, so that the absence of such motive
or intent is no answer to the criminal charge (/). But an honest belief
in the existence of a right in favour of the prisoner to the custody of the
girl may suffice to justify acquittal {k).

The enactment does not include the word ' detain.'

Take or Cause to be Taken. — The taking need not be by force, actual
or constructive, physical or moral, and it is immaterial whether or not
the girl consents (Z), or whether the proposal that she should go away
emanates from the defendant or from the girl (m).

Questions have arisen whether decoying or enticing away as distinct
from actual taking falls within the enactment {n). It seems now to be
established that persuasion or blandishment by the defendant to the girl
to leave her home, if effective, is within the statute ; but that where the
active part is by the girl and not by the man he is not liable to
conviction (o).

offence at all. It may be true to say that
the meaning of the word " unlawfully " is
that the prohibited acts be done " without
justification or excuse." I, of course, agree
that if there be a legal justification there
can be no crime. But I come to the con-
clusion that a mistake of facts on reasonable
grounds, to the extent that, if the facts
were as believed, the acts of the prisoner
would make him guUty of no criminal
offence at all, is an excuse, and that such
excuse is impUed in every criminal charge
and every criminal enactment in England.'
Bramwell, B. : ' What the statute con-
■ templates, and what I say is wrong, is the
taking of a female of such tender years that
she is properly called a girl, can be said to
be in another's possession and in that other's
care or charge. No argument is necessary
to prove this. It is enough to state the
case. The Legislature has enacted that if
any one does this wrong act, he does it at
the risk of her turning out to be under six-
teen. This opinion gives full scope to the
doctrine of the mens rea. If the taker
beheved he had the father's consent,
though wrongly, hewould have no mens rea ;
so if he did not know she was in any one's
possession, nor in the care or charge of any
one. In those cases he would not know
he was doing the act forbidden by the
statute, an act which if he knew she was in
possession and in care or charge of any one,
he would know was a crime or not, accord-
ing as she was under sixteen or not. He
would not know he was doing an act wrong
in itself, whatever was his intention if done

without lawful cause.' See the discussion
of the case in R. v. Tolson, 23 Q.B.D. 168 ;
and as to mens rea, ante, p. 101.

(/) K. V. Booth, 12 Cox, 231, Quain, J.

(sr) R. V. Myoook, 12 Cox, 28, Willes, J.
R. V. Olifier, 10 Cox, 402, Bramwell, B.

(h) R. V. Cornforth, 2 Str. 1162 (decided
on 4 & 5 Ph. & M. c. 8). 1 Hawk. c. 41,
s. 14. R. V. Sweeting, 1 East, P. C. 457.

(i) Ratcliffe's case, 3 Co. Rep. 39.

ij) 1 East, P. C. 459. See R. v. Booth,
12 Cox, 231, Quain, J., and R. v- Tinkler,
1 E. & F. 513, Cockburn, C.J., decided on
9 Geo. IV. c. 31, s. 20, of which 24 & 25
Vict. c. 100, s. 55, is a re-enactment.

(i) R. V. Tinkler, tibi sup.

{I) R. V. Mankletow, Dears. 159. R. v.
Kipps [1850], 4 Cox, 167, Maule, J. R. v.
Handley, 4 F. & E. 648, Wightman, J. ; all
decided on 9 Geo. IV. o. 31, s. 20. R. v.
Jarvis, 20 Cox, 249, Jelf, J.

(m) R. ^. Robins [1844], 1 C. & K. 456.
Atcherley, Serjt., afterwards stated that
he had mentioned the case to Tindal, C.J.,
and that he was of opinion that the direc-
tion of the jury was right, and that there
was a taking of the girl within s. 20. See
R. V. Prince, ante, p. 959, note (e). In R.
V. Frazer [1861], 8 Cox, 446, Pollock, C.B.,
after consulting Williams, J., ruled that it
was unnecessary under 9 Geo. IV. u. 31,
s. 20, to prove such a taking as would
amount to a trespass or anything in the
nature of a trespass.

(m) R. V. Meadows, 1 0. & K. 399, Parke,
B.

(o) R. V. Jarvis, 20 Cox, 249, Jelf , J.

CHAP. X.] Of Abduction of Girls under Sixteen. 961

The prisoner met in the street a girl under sixteen, and persuaded
her to go with him to a neighbouring city. He there seduced her, and
afterwards, on the same day, accompanied her back, and parted with
her in the street where he had met her. The girl lived with her parents
at home, and immediately returned there. The prisoner made no inquiries,
and had no knowledge of whether the girl's parents were even living or
not, but he did not beheve she was a prostitute : — Held, that there was
no evidence to support a conviction under sect. 55 {f).

If the girl, while living with her father, leaves his house for a mere
temporary purpose, intending to return to it, she is still in his possession
within the meaning of the statute ; and if when so out of the house the
defendant induces her to run away with him, he is guilty of an offence
within sect. 55 (q).

Although it seems that a man is not bound to return a girl under
sixteen to her father's custody when she has left home without any
inducement, and come to him (r), yet if he has at any time held out an
inducement to her, and she, acting upon that, comes to him at a time
unexpected by him, and he then induces her to continue away from her
father's custody, he is guilty (s).

On an indictment for taking a girl under sixteen, out of the possession
of her father, it appeared that the prisoner lived near the girl's home,
and had known her a considerable time. Six months previously, the
father, hearing that the girl went to the prisoner's house, remonstrated
with him for encouraging her to go there ; the prisoner rephed that he
did not want girls for the purpose of intercourse, as he was old and under
medical treatment. One Sunday she left her father's house to go, as she
said, to the Sunday school, but did not return. In fact she went to the
prisoner's house, and was found there a month afterwards. A youth
proved that the prisoner had told him to bring that young girl if he could.
He had told a policeman that he had the girl to do his work, as he had
no servant. The girl stated that she had for two years been in the habit
of going to his house occasionally, and that he had tried to persuade her
to come and.live with him, and had promised her a new dress if she came,
and that when she came he promised to provide for her in his will, and
persuaded her to sleep with him. Pollock, C.B., directed the jury that
if they believed that the prisoner by promises or persuasion enticed the
girl away from her father, and so got her out of his possession, and into
his own, they should find him guilty, otherwise if she came without any
previous inducement or enticement {t).

(p) R. V. Hibbert, L. E. 1 0. 0. R. 184, cause to know, that the girl was vmder such
Pigott, B., doubted. Bovill, C. J., said : care ; but no such facts are found by the
' In the case before us there is no statement case to have existed. In the absence of
or finding of the fact that the prisoner knew, any such finding, we think that the Con-
or had reason to know, that the girl was viotion should be quashed.' See R. v.
vuider the charge of her father or mother Green, 3 P. & F. 274, and see per Brett,
or any other lawful guardian. CSroum- in R. o. Prince, ante, p. 959, note (e).
stances might exist to negative the pre- (q) R. v. Mycock, 12 Cox, J. 28, Willes,
sumption that she was in any such care, as J.

if the girl were upon the town, though that (r) R. v. Miller, 13 Cox, 179.

does not appear to be the case here. So, (s) R. v. Olifier, 10 Cox, 402, Bramwell,

on the other hand, there might be circum- B.

stances from which it might be inferred (t) R. v. Robb, 4 T. & F. 59. See R. v.

that the prisoner knew, or had reasonable Meadows, 1 0. & K. 399.

VOL. I. 3 Q

962 Of Abduction of Females. [book ix.

Where the suggestion to go away came from the girl herself and the
defendant merely yielded to her suggestion, it was held that he should be
acquitted (m).

Out of the Possession. — A father is at common law entitled to the
custody of his child until it attains the age of twenty-one or marries under
that age (v), or unless there be some sufficient reason to the contrary {w),
but sixteen is described as the age of emancipation for the purpose of poor
law settlement and maintenance. The word in the statute is ' possession,'
which involves more than the legal right to custody.

Against the Will. — Where the parent, &c., is induced to let the girl
be taken out of his possession by fraudulent representations it would
seem that the taking is against his will within the meaning of the
enactment.

On an indictment under 9 Geo. IV. c. 31, s. 20 {x), for the abduction
of a girl under siKteen years of age, it appeared that the prisoner pretended
that he had heard of a place for the girl ; the mother said that the child
was too young, being only between ten and eleven years of age ; but the
prisoner said she was quite old enough, for he only wanted her to go to
S. with a lady to nurse a baby, and to go on errands. The prisoner called
the same day and took the child away, saying the lady was too ill to
come herself. He did not, however, take her to any lady, but kept her
with him from Monday till Friday, and slept with her every night, and
then took her home. The father proved that he parted with the child on
the representation that she was to go to live with a lady, which he believed
to be true. For the Crown it was argued that the consent of the father
having been obtained by the fraudulent representations of the prisoner,
was no consent at all ; for the prisoner it was contended that the abduction
was not complete, for the child was brought back ; if this were an
abduction, any seducing away of a girl for an hour would be an abduction ;
there was no intention shewn to deprive the parents of the child. Gurney,
B., left it to the jury to say whether the father was induced to part with
the possession of the child by the fraudulent representations made by
the prisoner {y).

In Hicks v. Gore (z), where a widow, fearing that her daughter, who was
a rich heiress, might be seduced into an improvident marriage, placed her
under the care of a female friend, who sent for her son from abroad, and
married him openly in the church, and during canonical hours, to the
heiress, before she attained the age of sixteen, and without the consent
of her mother, who was her guardian ; it was held that in order to bring
the offence within the statute (4 & 5 Ph. & M. c. 8, rep.) it must appear
some artifice was used, that the elopement was secret, and that the

(tt) R. V. Jarvis, 20 Cox, 249, Jelf, J. would have been reserved had not the

This decision is contrary to R. v. Biswell prisoner been convicted and sentenced on

[1847], 2 Cox, 279. another indictment. The mother proved

(v) Be Agar ElUs, 24 Ch. D. 317. Cf. Ex that she would have let the child go with

parte Barford, 8 Cox, 405. the prisoner if he had told her that she

(w) Re Newton [1896], 1 Ch. 740. was to go and live with him as his servant ;

(x) Repealed in 1861, and re-enacted as but Gurney, B., held that this could not

24 & 25 Vict. 0. 100, s. 55, ante, p. 959. affect the case.

[y) R. V. Hopkins [1842], C. & M. 254. (z) 3 Mod. 84. 1 Hawk, c. 41, s. 11.
The prisoner was convicted, and the point

CHAP. X.] Of AhdvMion of Girls under Sixteen. 963

marriage was to the disparagement of the family. But in this case
no stress appears to have been laid upon the circumstance of the mother
having placed the child under the care of the friend, by whose procurance
the marriage was effected ; and that it deserves good consideration
before it is decided that an offender, acting in collusion with one who
has the temporary custody of another's child, for a special purpose, and
knowing that the parent or guardian did not consent, was not within the
statute ; for that then every schoolmistress might dispose, in the same
manner, of the children committed to her care (a). It was said that
there must be a continued refusal of the parent or guardian ; and that
if they once agreed it was an assent within 4 & 5 Ph. & M. c. 8, notwith-
standing any subsequent dissent (6) ; but this was not the point in
judgment ; and it needs further confirmation (c).

It was no legal excuse for the offence under 4 & 5 Ph. & M. c. 8, that the
defendant made use of no other means than the common blandishments
of a lover, to induce the lady secretly to elope and marry him, if it appeared
that the father intended to marry her to another person, and so that the
taking was against his consent (d).

In R. V. Kipps (e), on an indictment under 9 Geo. IV. c. 31, s. 20, it
appeared that the girl was between fifteen and sixteen years of age, and
the prisoner had for several months corresponded with her, and paid
her the attentions of a lover, though he was a married man, and had
endeavoured to persuade her to leave her home, where she was living with
her parents, and ultimately prevailed upon her to meet him at a place in
the village where they were both living, which accordingly she did, when
they left the village together. There was no suggestion of any force or
fraud used by the prisoner in inducing the girl to consent to elope with
him. It was urged that there was no taking within the meaning of the
Act, as the girl went voluntarily with the prisoner, and R. v. Meadows (/)
was relied upon ; for the Crown, R. v. Robins (g) and R. v. Biswell (h)
were cited. Maule, J., said : ' If the construction apparently put upon
the statute in R. v. Meadows be the right construction, the Act can
hardly ever be violated, except in the case of children in arms. It rarely
or never happens that the abductor takes away a girl of fourteen or
fifteen in his arms, or upon his back ; so that such an interpretation would
make the statute inoperative. The law throws a protection about young
persons of the sex and within the age specified by the statute. It has
been determined by the legislature, that at that age young females are
not able to protect themselves, or give any binding consent to a matter

(a) 1 East, P. 0. 457. By the fraud the a distinction between an offence under
temporary guardian loses all right to the sect. 20 of the 9 Geo. IV. c. 31, and under
possession of the child. See an Anonymous sect. 21 ; and I am incUned to think, that
case decided in 1875 and referred to in to bring a case within sect. 20 f which is
Koscoe Grim. Ev. (13th ed.) 230. similar to 24 & 25 Vict. c. 100, s. 55], there

(b) Calthrop v. Axtel, 3 Mod. 169. must be an actual taking or causing to be

(d) K. V. Twisleton, 1 Lev. 257 ; 1 Sid. enticement away which would be an
387 ; 2 Keb. 32. 1 Hawk. c. 41, s. 10. offence within sect. 21, would not con-

(e) [1850] 4 Cox, 167. stitute one under sect. 20.'
(/) 1 C. & K. 399. Parke, B., said : ' It (g) [1844] 1 C. & K. 456.

is quite evident that the Legislature made (h) [1847] 2 Cox, 279.

3q2

964 Of Abduction of Females. [book ix.

of this description. It is therefore quite immaterial whether the girl
abducted consent or not ; if her family, that is to say, those who under
the statute may lawfully have the possession and control over her, do
not consent to her departure, the offence is completed.'

InE. V. Mankletow {i), upon a similar indictment, it appeared that the
prisoner had stated to the father that he intended to emigrate to America,
and a short time before his departure he had privately persuaded the girl,
who was between twelve and thirteen, to go with him to America, and
on the morning of his departure he had secretly told her to put her things
in a bundle, and to walk to a place where he would meet her ; she did so,
and the prisoner, having parted with her father in a road, met her at the
place appointed, and they travelled together to London, where he was
apprehended, and then said he had paid the girl's passage to London,
and was going to take her to America. For the prisoner it was urged
that as the girl went voluntarily there was no taking within the meaning
of the statute, and R. v. Meadows {ii) was cited. R. v. Robins (j) was
cited on the other side, and it was stated that Maule, J., at a previous
assize, had declined to act on R. v. Meadows. Coleridge, J., overruled
the objection, and told the jury that the girl was in the father's possession
while in his house, although he was not actually in it ; .that the taking
need not be by force, nor against the girl's will ; and that if the prisoner
by persuasion induced her to leave her father's roof against his will, in
order to her going with him to America, the case was within the statute ;
and, upon a case reserved, it was held that the conviction was right. In
a case like the present the taking need not be by force, actual or construc-
tive, and it is immaterial whether or not the girl consents. The Act was
passed to protect parents and others having the lawful charge or custody,
and it is therefore immaterial whether the taking be with or without the
consent of the girl. And as to the taking of the girl out of the possession
of the father, a manual possession is not necessary ; if the girl be a member
of the family, and under the father's control, there is a sufficient possession.
If a girl leaves her father's house for a particular purpose, with his sanction,
she cannot legally be said to be out of his possession. Here the father
had possession until the very act of taking {jj).

In R. «. Handley {Ic), on a similar indictment against a man and a
woman, it appeared that the girl had become acquainted with the female
prisoner, and at her house met the male prisoner, and she and the prisoners
met frequently, and at last she left her father's house, as she said, to go

(») [1853]Dears. 152: 22L. J. M. C. 151: On R. v. Meadows being cited, Jervis,

6 Cox, 143. C. J., observed that ' the girl, by voluntarily

(ii) Ante, p. 963. going from her father's house, may have

(j) [1844] 1 C. & K. 456. severed the possession of the father, and so

(jj) Parke, B., said : ' Supposing the girl could not be said to be taken out of the

to have abandoned her father's possession, possession of her father. I do not find that

and the prisoner then to take her away, in R. u. Kipps that point was brought

it would not come within the statute. But before my brother Maule's mind ' ; and

supposing she conditionally abandoned the at the end of his judgment he added,' ' I do

possession of her father under the impres- not think the case of R. v. Kipps interferes

sion that the prisoner would be at a certain at all with the decision of R. v. Meadows.'
point to take her away, that would not be (k) [1859] 1 F. & F. 648.

a determination of the father's possession.'

CHAP. X.] Of Abduction of Girls under Siodeen. 965

for a walk, at tlie same time saying that slie should return in an hour,
but she did not return ; and the same evening her brother went to the
house of the female prisoner, who denied having seen her ; and it was
afterwards discovered that she had left the same night, and she was
afterwards found in a low lodging together with the male prisoner ; the
girl had taken some wearing apparel to the house of the female prisoner
the day before she left home, and she had advised her to go away with
the male prisoner ; it was contended that there was nothing to shew
that the girl's going away was not entirely voluntarily. Wightman, J.,
told the jury, that ' this offence is complete under the statute which creates
it without any reference to the object for which the girl may be taken.
You must be satisfied that the girl was under sixteen years of age, and
that her father was unwilling that she should go away, and it must be
assumed to be so, if it appears that, had he been asked, he would have
refused his consent. You must also be satisfied that the prisoners, or
one of them, took the girl out of the possession of her father. For this
purpose a taking by force was not necessary ; it is sufficient if such moral
force was used as to create a willingness on the girl's part to leave her
father's house. If, however, the going away was entirely voluntary on
the part of the girl, the prisoners would not be guilty of an offence under
this statute

In E. V. Baillie {I), on a similar indictment the prisoner was proved
to have lodged in the house of the girl's father, and he and the girl became
engaged, and he induced her to go with him to a Eoman Catholic chapel,
where they were married ; but she immediately returned to her father's
house, and continued to live there as before ; and the marriage had
never been consummated ; the father did not know of the marriage till
two or three weeks afterwards ; it was urged that the girl had never been
taken out of her father's possession within the meaning of the Act ; it
was answered that the marriage without the father's consent was an
abduction within the meaning of the Act, and after the marriage the
father had no legal control over the girl. It was held that this case was
within the Act ; the girl could not be considered to be in her father's
possession, although she was in his house ; because she was in the lawful
possession of her husband, and the father could never have the custody
of her in the same sense as before her marriage. The distance she was
taken, and the time she was kept away, were immaterial, her husband
having power to take her away whenever he liked, and her whole
relationship to her father being altered by the marriage.

In R. V. Timmins (m), on a similar indictment it appeared that the
prisoner was well known to the girl, and she had on a former occasion slept
with him a whole night ; and that on a Sunday she met the prisoner, and
they went to London together, and spent three days in visiting places of
public entertainment, sleeping together at night, and on Wednesday
morning, on getting up, the prisoner said to her, ' I 'U go to work, and you
go home ' : they separated, and the girl went home ; the father swore
that his daughter was absent without his knowledge and against his will.

(I) [1859] 8 Cox, 238, Recorder and (m) [1800] Bell 276.

Common Serjeant.

966 Of Abduction of Females. [Book ix

The jury found that the father did not consent, and that the prisoner
knew he did not consent, and that the prisoner took the girl away with
him in order to gratify his passions, and then allowed her to return home,
and did not intend to keep her away permanently. Upon a case reserved
upon the question, whether, on the facts so found, any offence had been
committed under the statute, Erie, C.J., delivered judgment : ' We are
of opinion that the conviction must be affirmed. The statute was passed
for the protection of parents, and for preventing unmarried girls from
being taken out of the possession of their parents against their will ;
and it is clear that no deception or forwardness on the part of the girl in
such cases can prevent the person taking her away from being guilty of
the offence created by this section. The difficulty which we have is to
say what constitutes a taking out of the possession of the father. The
taking away might be consistent with the possession of the father, if the
girl went away with the party intending to return in a short time ; but
when a person takes a girl away from the possession of her father, and
keeps her away against his will for a length of time, as in this case, keeping
her away from her home for three nights, and cohabiting with her during
that time, we think the evidence justified the jury in finding the taking
to be a taking out of the possession of the father within the meaning of
the statute. The prisoner took the girl away from under her father's
roof, and placed her in a situation quite inconsistent with the father's
possession. In our judgment, therefore, the jury were justified in their
verdict by the evidence before them, which we consider to be the point
submitted to us, although the prisoner did not intend the taking to be
permanent, but when his lust was gratified intended to cast the girl from
him. We limit our judgment to the facts of this particular case. It
may be that a state of facts might arise upon which the offence would
be complete in law when the girl passed her father's threshold, as where
she is taken away with the intention of keeping her away permanently ;
but we mean it to be understood, that, although we affirm this conviction,
we do not intend to say that a person would be liable to conviction under
the section if it should appear that the taking was intended to be tempo-
rary only, or for a purpose not inconsistent with the relation of father
and child. It is sufficient for us to say that in this case the conviction
was justified by the evidence' (w).'

In E. V. Tinkler (o), on a similar indictment it appeared that the girl
was the younger sister of the prisoner's deceased wife, and had lived in
his house up to the time of his wife's death, but on that occasion another
married sister had caused her to be placed under the care of another
woman, and no improper motive was alleged against the prisoner, he
having alleged as his reason for taking the child away that he had
promised her father on his deatb-bed to take care of her. Cockburn,
C.J., told the jury that it was clear that the prisoner had no right to
take the child out of the woman's custody. But as no improper motive
was suggested, it might be concluded that the prisoner wished the child
to Hve with him, and that he meant to discharge the promise he had
made to her father, and that he did not suppose he was breaking the

(n) Only argued for the Crown. (o) [1859] 1 P. & F. 513,

CHAP. X.] Of Abduction of Girls under Sixteen. 967

law when he took the child away. If the jury should take this view of
the case, and be of opinion that the prisoner honestly believed that he
had a right to the custody of the child, then, although the prisoner was
not legally justified, he would be entitled to be acquitted.

In R. V. Primelt (p), on a similar indictment it appeared that the girl
was more than fifteen, but in appearance three years older and very
prepossessing, and lived with her mother, a widow ; on the evening of
the alleged abduction she left her mother's house at nine o'clock to
spend the night at a married sister's, but, joining company with another
girl, they went to a public-house, where they met the two prisoners, and
from thence went to another public-house, where they met the prisoners
again by appointment, and thence to the farming premises of one of the
prisoners, where they remained till four o'clock in the morning ; it was
then proposed that they all should go to London, which they did, and
stayed the day there, and one of the prisoners slept with the girl, and the
other with her companion, and returned the next day. The mother
swore that it was not by her consent that the girl had gone away, and
that she had inquired everywhere for her without success ; but the girl
stated that she occasionally went to dances at public-houses, and was
occasionally out late at night without anyone to look after her, and that
her mother on these occasions left the door on the latch, or came down
and let her in ; that the prisoner who slept with her was not the first
man who had had connection with her. Cockburn, C.J., directed the
jury that there was no case against the other prisoner ; and as to this
prisoner, if they thought that the mother had by her conduct counte-
nanced the daughter in a lax course of life, by permitting her to go out
alone at night and to dance at public-houses, this was not a case that
came within the intent of the statute ; but was one where what had
occurred, though unknown to her, could not be said to have happened
against her will (q).

Abduction of Girls under Eighteen. — By the Criminal Law Amendment
Act, 1885 (48 & 49 Vict. c. 69), s. 7, ' Any person who, with intent that
any unmarried girl under the age of eighteen years should be unlawfully
and carnally known by any man, whether such carnal knowledge is
intended to be with any particular man, or generally — takes or causes to
be taken such girl out of the possession and against the will of her father
or mother, or any other person having the lawful care or charge of her,
shall be guilty of a misdemeanor, and being convicted thereof shall be
liable at the discretion of the Court to be imprisoned for any term not
exceeding two years, with or without hard labour.

' Provided that it shall be a suf&cient defence to any charge under
this section if it shall be made to appear to the Court or jury that the
person so charged had reasonable cause (r) to believe that the girl was
of or above the age of eighteen years' (s).

(p) [1858] 1 F. & F. 50. 8 Edw. VII. c. 67, 3. 18, ante, p. 953.

(g) For a similar instance of failure to (r) At the time of taking. R. v. Packer,

take reasonable care of a girl under sixteen, 16 Cox, 57.

which led to a doubt whether the girl was {s) This clause excludes the application

taken against her will. See B. v. Frazer of R. v. Prince, ante, p. 959.
[1861], 8 Cox, 446, Pollock, C.B. See

968 Of Abduction of Females. [book ix.

It must be proved that the girl was taken out of the possession of
the person mentioned in the indictment. Whether the girl was in her
father's possession seems to be a question of fact for the jury (i). A girl
employed as a barmaid at some distance from her home was held not to
be in possession of her father (m). Under this enactment the inteM is
an essential element in the offence. As to proof of age vide ante, p. 954.
The father or mother should be called to prove that he or she did not
consent {v).

The word ' taking ' in this enactment has the same meaning as in 24 &
25 Vict. c. 100, s. 55 (w). The enactment does not apply when the girl
has left her home without any inducement from the defendant {x).

The willingness of the girl to go with the defendant is no answer to
an indictment under the section, which protects parental and pubhc rights.
Abduction of Heiresses {y). — By the Offences against the Person Act,
1861 (24 & 25 Vict. c. 100), s. 53, ' Where any woman of any age shall have
any interest, whether legal or equitable, present or future, absolute,
conditional, or contingent, in any real or personal estate, or shall be a
presumptive heiress or coheiress, or presumptive next of kin, or one of the
presumptive next of kin, to any one having such interest,

whosoever shall, from motives of lucre, take away or detain such woman

against her will, with intent to marry or carnally know her, or to

cause her to be married or carnally known by any other person ; and

whosoever shall fraudulently allure, take away, or detain such woman,

and being under the age of twenty-one years, out of the possession

and against the will of her father or mother, or of any other person

having the lawful care or charge of her, with intent to marry or

carnally know her, or to cause her to be married or carnally known

by any other person,

shall be guilty of felony, and being convicted thereof- shall be liable . . .

to be kept in penal servitude for any term not exceeding fourteen

years . . . (z) ; and whosoever shall be convicted of any offence against this

section shall be incapable of taking any estate or interest, legal or equitable

in any real or personal property of such woman, or in which she shall

have any such interest, or which shall come to her as such heiress, coheiress,

or next of kin as aforesaid ; and if any such marriage as aforesaid shall

have taken place, such property shall upon such conviction be settled in

such manner as the Court of Chancery in England or Ireland shall upon

any information at the suit of the Attorney-General appoint ' (a).

(t) R. V. Mace, 50 J. P. 776. 433.

(u) R. V. Henkers, 16 Cox, 257. (z) For other punishments see 54 & 55

(d) R. v. Naah, Wright, J., noted in the Vict. c. 69, s. 1, ante, pp. 211, 212. The

Times 2nd July, 1903. words omitted were repealed in 1892

(w) R. V. Henkers, 16 Cox, 257, following (S. L. R.).
R. V. Ohfier, 10 Cox, 402, ante, p. 961. (a) This section combines the provisions

(x) R. V. Kaufmann, 68 J.P. 189, Bosau- of 9 Geo. IV. o. 31, s. 19 (E) and 10 Geo. IV.

quet. Common Serjeant. c. 34, s. 23 (I). The words in italics in

iy) By 13 Edw. I. c. 35, it is an offence the first branch of the clause were intro-

punishable by two years' imprisonment to duced to avoid a doubt which might have

take or carry away any infant, male or been raised, whether the oases they

female, whose marriage belongs to another. expressly include were within the former

2 Co. Inst. 437. As to carrying away nuns enactments. In the second branch, the

or carrying away a wife with the goods of age of twenty-one is substituted for

herhusband, see ISEdw. I. 0. 34, 2Co. Inst. eighteen in 10 Geo. IV. u. 34, s. 23 (I).

CHAP. X.] Of Abduction of Women of any Age. 969

By sect. 54 {b), ' Whosoever shall, by force, take away or detain
against her will any woman, of any age, with intent to marry or carnally
know her, or to cause her to be married or carnally known by any other
person, shall be guilty of felony, and being convicted thereof shall be
liable ... to be kept in penal servitude for any term not exceeding
fourteen years . . . ' (bh).

Decisions on Former Statutes. — It was made a question of considerable
doubt, whether persons ' receiving wittingly the woman so taken against
her will, and knowingly the same,' were ousted of clergy by 18 Eliz.
c. 7 (c). But it was agreed that those who received the offender, knowingly,
were only accessories after the fact, according to the rule of the common
law (d). Those who were only privy to the marriage, but in no way
parties or consenting to the forcible taking away were not within the
statute (e).

It was no sort of excuse that the woman was at first taken away with
her own consent, if she afterwards refused to continue with the offender
and was forced against her will ; for till the time when the force was
put upon her, she was in her own power ; and she might from that time
as properly be said to be taken against her will, as if she had never given
any consent (/). Getting a woman inveigled out by confederates, and
then detaining and taking her away, was a taking within the statute (g).
The taking alone did not constitute the offence under 3 Hen.VII. c. 2 (h),
and it was necessary that the woman taken away should have been
married or defiled by the misdoer, or by some other, with his consent (i).
The present enactment makes the taking away or detaining a woman,
with intent to marry or carnally know her, a complete offence. Under
3 Hen. VII. c. 2, it was decided, that if the woman were under force at
the time of taking, it was not at all material whether she were ultimately
married or defiled with her own consent or not ; on the ground that an
offender should not be considered as exempted from the provisions of the
statute by having prevailed over the weakness of a woman, whom he
got into his power by such base means (/). And it was also decided

Under 10 Geo. IV. o. 34, s. 23 (I), the girl Hall's case, 12 Co. Rep. 100. Burton v.

must have been married or defiled, and by Morris, Hob. 182 ; Cro. Car. 485.

the person taking her away. The section (bh) For other punishments see 54 & 55

is so altered as to make it correspond with Vict. c. 69, s. 1, ante, pp. 211, 212. The

9 Geo. IV. c. 34, a. 19, in both respects. words omitted were repealed in 1892

The last part of the clause is framed on 10 (S. L. R.).

Geo. IV. c. 34, s. 23 (I). It is enlarged so (c) 1 Hale, 661. 1 East, P. C. 452, 453.

as to embrace property that may come to The statute was repealed in 1828 (9 Geo. IV.

the woman after the marriage ; and the c. 31).

High Court is empowered to settle the (d) 1 Hale, 661. 1 Hawk, c, 41, s. 9.

property in such a manner as it deems fit, 3 Inst. 61. 1 East, P. C. 452, 453.

instead of its being invested in trustees for (e) Fulwood's case, Cro. Car. 488, 489.

the separate use of the wife alone, which 1 Hawk. o. 41, s. 10.

was all that 10 Geo. IV. c. 34, s. 23 (I), (/) 1 Hawk.c. 41, b. 7. Fulwood's case,

directed. The Court, therefore, may, in Cro. Car. 485.

its discretion, settle the property on the (g) R. u. Brown, 1 Ventr. 243 : 3 Keb.

issue of the marriage, and in default of such 193.

issue, on any relatives of the wife. (h) Repealed in 1828 (9 Geo. IV. c. 31).

(b) Taken from 10 Geo. IV. c. 34, s. 22 (I), ( j) R. v. Wakefield, 2 Lew. 1. The parties

and 5 Vict. Sess. 2, u. 28, s. 15 (1). It were convicted of conspiracy to contravene

provides protection for women who happen 3 Hen. VII. c. 2, and 4 & 5 Ph. & M. o. 8.

to have neither any present nor future (j) 1 Hale, 660. 1 Hawk. c. 41, s. 8.

interest in any property. See Baker and Fulwood's case, Cro. Car. 485, 493.

970 Of Abduction of Females. [book ix.

that a marriage would be sufficient to constitute the offence, though the
woman was in such fear at the time that she knew not what she
did (h).

Venue. — Under 3 Hen. VII. c. 2, where a woman was taken away
forcibly in one county, and afterwards went voluntarily into another
county, and was there married or defiled, with her own consent, the fact
was not indictable in either county ; on the ground that the offence was
not complete in either, but that if by her being carried into the second
county, or in any other manner, there was a continuing force in that
county, the offender might be indicted there, though the marriage or
defilement ultimately took place with the woman's own consent Q). The
place of trial in such a case is now regulated by 7 Geo. IV. c. 64, s. 12
{ante, p. 20).

The doctrine that there must have been a continuance of the force
into the county where the defilement took place, was recognised and acted
upon in the following case : The prisoners, a clergyman and his brother,
were indicted in the county of Oxford, under 3 Hen. VII. c. 2, for forcible
abduction. Certain evidence was given at the trial on the part of the
prosecution. Lawrence, J., told the jury that, in order to constitute the
ofience Tvith which the prisoners were charged, there must be a forcible
taking, and a continuance of that force into the county where the defile-
ment takes place, and where the indictment is preferred ; that in the
present case, though there appeared clearly to have been force used for
the purpose of taking the prosecutrix from her house (which was in
Middlesex), yet, it appeared also, that in the course of the journey she
consented, as she did not ask for assistance at the inns, turnpike gates,
&c., where she had opportunities ; and that, as she was unable to fix times
or places with any precision, this consent probably took place before the
parties came into the county of Oxford ; and that they must therefore
acquit the prisoners (m).

Evidence. — Upon an indictment for abduction under 9 Geo. IV. c. 31,
s. 19 (rep.), ifc was necessary to prove that the prisoner took away the
woman from motives of lucre, but his expressions relative to her property
were evidence that he was actuated by such motives (n).

An indictment under sect. 53 ought expressly to set forth that the
woman taken away had lands or goods, or was presumptive heiress, &c.,
and that the taking was against her will, and from motives of lucre (o),
and with intent to marry or defile, &c. (p).

In R. V. BurreU {q), the indictment charged that F. B. fraudulently
allured, took away, and detained J. B. out of the possession of her mother

Swendsen's case, 5 Harg. St. Tr. 450, 464, (o) For rulings on the Act of Hen. VII.

468 : 14 Howell St. Tr. 559. see 1 Hawk. c. 41, s. 4. 1 Hale, 660.

(h) Fulwood's case, Cro. Car. 482, 484, 4 BI. Com. 209. 12 Co. Rep. 21, 100.

488, 493. (p) Under the former Acts it was not

(I) Fulwood's case, Cro. Car. 485, 488. necessary to state such intention. Ful-

1 Hale, 660. 1 Hawk. c. 41, s. 11. 1 East, wood's case, Cro. Car. 488, swpi-a. It is

P. C. 453. said, however, in 1 Hale, 660, that the

(m) R. V. Locthart and Loudon Gordon, words ed intentione ad ipsam maritandam

cor. Lawrence, J., Oxford Lent Ass. 1804. were usually added in indictments on this

This case is set out at length in the fourth statute, and that it was safest so to do.
edition of this work.

(») R. V. Barratt, 9 C. & P. 387. (q) L. & C. 354: 33 L. J. M. C. 54.

CHAP. X.] Evidence. 971

and W. S. H., he then having the lawful care and charge of her, she being
under the age of twenty-one years, and having a present legal interest in
real estates, with intent to marry, &c., and H. R. B. was charged
with feloniously aiding, &c., to commit the felony. The prisoners
were paternal uncles of J. B., who was sixteen years old, and
entitled to real estates of the value of £50 a year. Her mother had first
married the brother of the prisoners, and after his death she had married
W. S. H. J. B. lived with her mother and stepfather till she went to
school in January, 1862, where she remained till August, 1862, when
she returned to her mother's, and in October she went to another school,
whence she returned to her mother's on December 20, in the afternoon ;
she stayed half an hour, and then left the house alone. About nine
o'clock that evening she returned, and stayed till ten, when she again
left without her mother's knowledge or consent. She returned the next
morning, and stayed with her mother about two hours, and then went
away without her mother knowing whither. In fact, she went to the
house of her uncle, H. R. B., and she continued there till January 19,
1863. She continued to pay visits to her mother for an hour or two
nearly every day till January 19. In the interval between her coming
home from the first and her going to the second school, it had been
arranged, at her own desire, in consequence of her not living happily
with her stepfather and mother, that she should live with her mother's
mother and brother. When she came back for the Christmas holidays,
she wished to remain with her mother, but the latter insisted on her
abiding by her own choice to go to her grandmother's for the holidays,
and would not consent to her staying with her at her stepfather's house.
On this she went to the house of H. R. B. Her mother, as soon as she
discovered that her daughter was there, desired her to come to her house,
and refused to let her have her clothes unless she did so. On January
19, F. B. and J. B. left together by railway, and were married the next
day at Plumstead. These occurrences took place under such circumstances
as fully warranted the jury in finding that J, B. was allured and taken
away hy F. B., with intent to marry her, and that H. R. B. aided in the
committing of this act. It was objected — 1, that there was no evidence
that F. B. had fraudulently allured away J. B. ; 2, that there was no
evidence that she was taken out of the possession of her mother ; 3,
that the indictment charged that she was taken out of the possession of
her mother and W. S. H., he having then the lawful charge of her, and that
it was necessary to prove that she was in his possession as thus alleged,
as well as of her mother ; but the only proof was that the guardianship
of her person and copyhold estate had been granted to him when she was
admitted as tenant of her copyhold estate. Upon a case reserved it was
urged — 1, that there was no fraudulent alluring away, and that the mere
alluring away was not sufiicient ; 2, there was no evidence that she was
taken out of the possession of her mother ; 3, that the stepfather had not
the lawful care of the girl ; he had no general guardianship of her person.
In Ratcliffe's case, 3 Co. Rep. 396, it was held that the consent of the
stepfather was wholly immaterial ; but here the indictment alleged the
stepfather to have the lawful custody. (Pollock, C.B. : ' We are all of
opinion that the indictment would be supported by shewing that the

972 Of Abduction of Females. [l^ooit i3t.

girl was taken out of the possession and against the will of the mother.
The rest might be struck out as surplusage.') For the crown it was
urged— 1, that in this case the statute did not require any evidence of
fraud, but if it did there was sufficient evidence of fraud ; 2, the girl
was in the possession of the mother ; she had never abandoned the
possession, and the mere right of possession was sufficient. Pollock, C.B. :
' The Court is divided in opinion on the facts of the case. The opinion
of the majority is that the facts do not bear out the prosecution, or, in
other words, that the crime has not been established against the prisoners.
There is no difference of opinion as to the law of the case.'

As to the woman taken away and married being a witness, see fost.
Book XITI. Chapter V. ' Evidence.'

( 972a )

CANADIAN NOTES.

ABDUCTION OF FEMALES.

Abduction of Woman, with Intent. — Code see. 313 (as amended by
8 & 9 Edw. VII. eh. 9).

Abduction of Heiresses. — Code sec. 314(a) (amended by 8 & 9
Edw. VII. ch. 9).

Fraudulently Alluring Heiress Under Twenty-one Against Will
of Father or Mother. — Code sec. 314 (&) (amended by 8 & 9 Edw. VII.
eh. 9).

Evidence must be given on a prosecution under Code sec. 314 as
amended by the Code Amendment Act of 1909, to prove that a girl
under twenty -one alleged to have been fraudulently detained against
her parent's will with intent to marry her, is an heiress or is entitled
to real or personal property within the terms of the statute ; and such
property interest must be alleged in an indictment or charge. R. v.
Fielding, 14 Can. Cr. Cas. 486.

Effect of Conviction on Property — Code sec. 314(2).

It need not be shewn that the accused knew that the woman was
an heiress or had such an interest in real or personal estate, etc., as is
specified in sub-sec. (&). E. v. Kaylor, 1 Dor. Q.B. (Que.) 364.

It may be doubted whether the Dominion Parliament have the
legislative authority to enact the sub-seC. 2, particularly as regards
the power purported to be conferred upon a Court of competent
jurisdiction to make a settlement of the property. The power to
legislate as to the "criminal law" is conferred by the British North
America Act upon the federal parliament, and the power to legislate
as to "property and civil rights" is vested by the same statute in the
Provincial Legislatures. Canada Criminal Law of Tremeear, p. 257.

Abduction of Girls Under Sixteen. — Code sec. 315.

Abduction of Oirls Under Fourteen. — Code sec. 316.

In Ontario in the extradition case of R. v. Watts (1902), 5 Can.
Cr. Cas. 246, 3 O.L.R. 368, it was held that the child's own father
may be guilty of child-stealing within the Code, if after a divorce
.and the award of the custody of the child to the mother, the father
wilfully removes the child from her custody. And that an objection
by the husband to the validity of the divorce on the ground of collu-
sion cannot, where the collusion is denied on oath, be adjudicated upon
by the extradition commissioner, but extradition should be ordered

9726 Abduction of Females. [book ix.

notwithstanding such objection, and the prisoner left to his right to
contest the divorce decree at his trial by the foreign Court.

And in a Montreal extradition case, it was afterwards held that
where a divorce decree of a Court of competent jurisdiction in the
United States has awarded the custody of a child to the father as
against the mother, and the mother thereafter removes and con-
ceals the child for the purpose of evading the decree, a prima facie
ease for extradition is thereby made out against the mother upon a
charge of child-stealing. And, semble, the offence of child-stealing
under the Code, may be complete against the child's mother although
the father, to whom the child's custody has been awarded has never
had any actual separate possession of the child. Re Lorenz (1905),
9 Can. Cr. Cas. 158, 7 Que. P.R. 101 (Hall, J.).

Out of the Possession. — To constitute the crime of abducting a girl
out of the possession of and against the mil of her father under this
section, there must be an actual or constructive possession de facto,
in the father at the time of the taking. When the girl who was resi-
dent with her father in a foreign country, left without his consent
and with intent to renounce his protection, and came to Canada, the
father's possession ceased, and semble, a possession de jure after-
wards established by his following her to the place of flight is not the
possession contemplated by the section. R. v. Blythe (1895), 1 Can.
Cr. Cas. 263 (B.C.).

If the persuasion to leave and remain away operated wholly in
the foreign country, there is no jurisdiction to convict in Canada,
as persuasion is a necessary element in such cases of abduction. Ibid.

The girl is none the less in the "possession" of her' guardian by
reason of having left her guardian's house for a particular purpose
with his sanction. R. v. Mondelet (1877), Ramsay's Cases (Que.)
179, 21 L.C. Jut. 154.

Attempt. — Code sec. 949.

Punishment for Attempt. — Code sec. 570.

Conviction for Assault. — Code sec. 951.

( 973 )

CHAPTER THE ELEVENTH.

OF OFFENCES AGAINST NATURE.

Sect. I. — Of Incest.

The punishment of certain forms of this offence is regulated by the
Punishment of Incest Act, 1908 (8 Edw. VII. c. 45) (a).

Incest by Male Persons. — Sect. 1. — ' (1) Any male person who has
carnal knowledge {b) of a female person, who is to his knowledge his
grand-daughter, daughter, sister, or mother (c), shall be guilty of a misde-
meanor, and upon conviction thereof shall be liable, at the discretion of
the Court, to be kept in penal servitude for any term not less than three
years, and not exceeding seven years, or to be imprisoned for any time
not exceeding two years with or without hard labour : Provided that if
on an indictment for any sucb offence it is proved that the female person
is under the age of thirteen years the same punishment may be imposed
as may be imposed under section four of the Criminal Law Amendment
Act, 1885 (which deals with the defilement of girls under thirteen years
of age).' {Ante, p. 948.).

' (2) It is immaterial that the carnal knowledge was had with the
consent of the female person.

' (3) If any male person attempts to commit any such offence as afore-
said, he shall be guilty of a misdemeanor, and upon conviction thereof
shall be liable at the discretion of the Court to be imprisoned for any
time not exceeding two years with or without hard labour.

' (3) On the conviction before any Court of any male person of an offence
under this section, or of any attempt to commit the same, against any
female under twenty-one years of age, it shall be in the power of the
Court to divest the offender of all authority over such female, and if the
offender is the guardian of such female to remove the offender from such
guardianship, and in any such case to appoint any person or persons to
be the guardian or guardians of such female during her minority or any
less period : Provided that the High Court may at any time vary or

(a) Before this Act incest {i.e. carnal (6) See ante, p. 933.
intercourse between persons within the (c) See sect. 3, post, 973. It will be ob-
forbidden degrees of consanguinity or served that step-parents, &c., and step-
affinity) was punishable in England and children are not included. See R. v. Gedde-
Ireland only by proceedings in the Eccle- son [1906], 25 N. Z. L. R. 323, decided on
siastioal Courts. See Canons of 1603, Nos. the corresponding section of the Penal Code
109, 113. 2 Steph. Hist. Cr. L. 396-429. of New Zealand. In that colony ' adopt-
Blaokmore v. Briders, PhilUm, 359. As to ing ' parents and ' adopted ' children are
enforcing the order of the Ecclesiastical included, because of the special laws of the
Court, see 53 Geo. III. c. 127. In Scotland colony on adoption. R. ■;;. Stanley [1903],
(Act of 1567, c. 14) and in most British 23 N. Z. L. R. 378, UOO.
colonies the offence is punishable by statute.

974 Of Offences against Nature. [book ix.

rescind the order by the appointment of any other person as such guardian
or in any other respect ' {d).

Incest by Females of or over Sixteen. — By sect. 2, 'Any female person
of or above the age of sixteen years who with consent permits her grand-
father, father, brother, or son to have carnal knowledge of her (knowing
him to be her grandfather, father, brother, or son as the case may be)
shall be guilty of a misdemeanor, and upon conviction thereof shall be
Uable, at the discretion of the Court, to be kept in penal servitude for
any term not less than three years, and not exceeding seven years, or to
be imprisoned with or without hard labour for any term not exceeding
two years.'

Test of Relationship. — By sect. 3, 'In this Act the expressions
"brother" and "sister" respectively includes half-brother and half-
sister (e), and the provisions of this Act shall apply whether the relation-
ship between the person charged with an offence under this Act and the
person with whom the offence is alleged to have been committed, is or is
not traced through lawful wedlock.'

The relationship of the parties may be proved by oral evidence
supplemented by certified copies of certificates of birth or marriage
when available (/). In prosecutions under this Act if the other party
to the offence is called for the Crown, his or her evidence will need
corroboration in a material particular implicating the accused {ff).

Prosecution of Offences. — By sect. 4, ' (1) An offence under this Act
shall be deemed to be an offence within, and subject to, the provisions
of the Vexatious Indictments Act, 1859, and any Act amending the
same (g).

' (2) A Court of Quarter Sessions shall not have jurisdiction to inquire
of, hear, or determine any indictment for an offence against this Act, or
for an attempt to commit any such offence.

' (3) If on the trial of any person for rape, the jury are satisfied that
the defendant is guilty of an offence under this Act, but are not satisfied
that the defendant is guilty of rape {ariie, p. 941), the jury may acquit
the defendant of rape and find him guilty of an offence under this Act,
and he shall be liable to be punished accordingly' (h).

' If, on the trial of any indictment for an offence under this Act the
jury are satisfied that the defendant is guilty of any offence under sections
four or five of the Criminal Law Amendment Act, 1885 [ante, pp.
947-951), but are not satisfied that the defendant is guilty of an offence
under this Act, the jury may acquit the defendant of an offence under

(d) Cf. Children Act, 1908 (8 Edw. VII. Geddeson [1905], 25 N. Z. L. R. 323.

c. 67), s. 21, ante, p. 915. (/) See Morris v. Miller, 1 W. Bl. 632.

(e) See Horner v. Horner, 1 Hagg. Con- R. v. Allison, R. & R. 109. R. v. Man-
sist. 352. Sherwood v. Ray, 1 Moore P. C. waring, D. & B. 132. Blrt v. Barlow, 1
353 ; 12 B. R. 848. R. v. Brighton, 1 B. Doug. 171. In the province of Quebec
& S. 147. The English and Scottish local legislation requires proof of relation-
authorities on the meaning of incest and ship by extracts from the registers
consanguinity are fully discussed in R. u. d'itat civil. R. v. Garneau [1899] 4
Minnis [1903], 22 N. Z. L. R. 856, where a Canada Cr. Cas. 69. This rule is peculiar
conviction was upheld for incest between to that province.

a man and his illegitimate half-sister. The (ff) See R. v. Everest, 2 Cr. App. R. 130.

definition of incest in the Act of 1908 is (g) Post, Vol. ii. p. 1927.

not that of the Table of Prohibited Degrees [h) Post, Vol. ii. pp. 1962 et seq.
which applies in divorce cases. See R. v.

CHAP. XI.] Of Sodomy and Cognate Offences. 975

this Act and find him guilty of an offence under sections four or five of
the Criminal Law Amendment Act, 1885, and he shall be liable to be
punished accordingly/

(4).' Section 4 of the Criminal Evidence Act, 1898 {fost, Book XIII.
Chapter V.), shall have effect as if this Act were included in the schedule
to that Act.'

By sect. 5, ' All proceedings under this Act are to be held in camera.'

By sect. 6, ' No prosecution for any offence under this Act shall be

commenced without the sanction of His Majesty's Attorney-General, but

this section shall not apply to any prosecution commenced by or on

behalf of the Director of Public Prosecutions.'

Extent. — By sect. 7, ' This Act shall not extend to Scotland.'
Commencement, — By sect. 8, ' This Act may be cited as the Punish-
ment of Incest Act, 1908, and shall come into operation on the first day
of January one thousand nine hundred and nine.'

Sect. II. — Of Sodomy and Cognate Offences.

In ancient times the punishment of sodomy, peccatum illud horribih,
inter Christianos non nominandum, was death (i) : but it had ceased to
be so highly penal, when 25 Hen. VIII. c. 6 (/) again made it capital.

By 24 & 25 Vict. c. 100, s. 61 (k), ' Whosoever shall be convicted of
the abominable crime of buggery, committed either with mankind or
with any animal, shall be liable to be kept in penal servitude for
life . . . ' {I).

On an indictment under this section the defendant may be convicted
(and punished under section 62) for an attempt to commit the offence (m).

By sect. 62 (n), ' Whosoever shall attempt to commit the said abominable
crime, or shall be guilty of any assault with intent to commit the same, or of
any indecent assault upon any male person, shall be guilty of a misde-
meanor, and being convicted thereof shall be liable. . . . tobe kept in penal
servitude for any term not exceeding ten years . . . ' (o).

When the indecent assault is by an adult on a male under sixteen the
defendant may consent to be tried summarily and on a summary conviction
may be sentenced to imprisonment for not over six months (oo).

The crimes punishable under these sections and solicitation or incite-
ment to commit them are ' infamous crimes ' within 24 & 25 Vict. c.
100, ss. 46-48, post, p. 1156, tit. ' Threats.'

(t) 12 Co. Eep. 37. The books differ except the punishment, which under that

as to the mode of punishment. According Act was death.

to Britton, a sodomite was to be burnt, (I) The minimum term of penal servitude

Britt. lib. 6, c. 9. In Fleta it is said, was reduced from ten to three years and

pecorant-es et sodomitce in terrd vivi confod- the alternative of imprisonment allowed by

iantur. The Mirror, bk. 1, t. 5, joins it 54 & 55 Vict. c. 69, s. 1, ante, pp. 211,

with heresy and apostasy as a form of 212. The words omitted were repealed

treason against God (Seld. Society edition, in 1892 (S. L. R.).

pp. 15,32,53). See also Pollock & Maitland (m) 14 & 15 Vict. c. 100, s. 9, post.

Hist. Eng. Law, ii. 554. Steph. Hist. Cr. Vol. ii. p. 1966 ' Procedure.'

Law, ii. 429. About the time of Richard (n) This section was new law in 1861

I., the practice was to hang a man, and except the part in common type, which was

drown a woman, guilty of this offence. taken from 14 & 15 Vict. c. 100, s. 29.

3 Co. Inst. 58. (o) For other punishments see 54 & 55

(j) Repealed as to E. in 1828 (9 Geo. IV. Vict. c. 69, s. 1, ante, pp. 211, 212. The

c. 31, s. 1). omitted words are repealed.

(k) Taken from 9 Geo. IV. c. 31, s. 5. {oo) 8Edw. 7,c.67,B.128(2)andsched. ij.

976 Of Offences against Nature. [book ix.

The ofience dealt with by ss. 61, 62 consists in a carnal knowledge
committed against the order of nature (p) by man with man ; or in the
same unnatural manner with woman (q) ; or by man or woman in any
manner with beast (r). The carnal knowledge necessary to constitute
this offence is the same that is required in the case of rape (s).

In this oSence, as in rape, the crime is complete on proof of penetration,
and even if emission be expressly negatived {t).

To constitute this offence the act must be in that part where sodomy
is usually committed. The act in a child's mouth does not constitute
the offence (u). An unnatural connection with an animal of the fowl kind
was considered not to be sodomy, when the fowl was so small that its
private parts would not admit those of a man, and were torn away in
the attempt (v).

Those who are present aiding and abetting in this offence are all liable
as principals (w). If the party on whom the offence is committed is under
fourteen (x), it is not felony in him but only in the agent (y). But where
one count charged the prisoner with committing an unnatural crime on
J. W., and another count charged the prisoner with permitting the said
J. W. to commit an unnatural crime with him, and the facts were that
the prisoner induced J. W., a boy of twelve years of age, to have carnal
knowledge of his person, the prisoner having been the pathic in the crime,
and the jury found the prisoner guilty, the judges, upon a case reserved,
were unanimously of opinion that the conviction was right (z).

Indictment. — The indictment must charge that the offender contra
naturcB ordinem rem habuit veneream, et carnaliter cognovit (a). But it is
said, that this alone would not be sufficient ; and that, as the statute
describes the offence by the term ' buggery,' the indictment should
also charge peccatumque illud sodomiticum Anglice dictum buggery
adtunc et ibidem nequitur, felonie diabolice ac contra naturam commisit ac
perpetravit (h).

Where an indictment alleged that the prisoner did attempt to commit
an unnatural crime with ' a certain animal called a bitch,' it was objected
that the description was too uncertain, as it might apply to a bitch fox,
a bitch otter, or the bitch of some other animal ; but Tindal, C. J., held
that the description was sufficient (c).

On trials for this offence at least as much strictness should be observed

(p) i.e. per anum. offence with a fowl. R. v. Brown 24

Iq) See R. «. Wiseman Fortescue (K.B.), Q.B.D. 357.
91. R. V. Jellyman, 8 C. & P. 604. Swin- (w) 1 Hale, 670. 3 Co. Inst. 59. Fost

burne on Wills, 97. 3 Co. Inst. 59. 422, 423.

(r) 1 Hale, 669. Sum. 117. 3 Co Inst. {x) 1 Hale 670. Fost. 422, 423. Vide

58, 59. 1 Hawk. c. 4. 6 Bao. Abr. tit. ante, p. 60.

' Sodomy.l 3 BI. Com. 215. 1 East, P. 0. (y) 1 Hale, 670. 3 Co. Inst. 59. 1 East,

480. P. C. It would seem that a male under

{s) Ante, p. 933. fourteen cannot be convicted as an agent :

(() 24 & 25 Vict. 0. 100, s. 63, ante, p. 3 Co. Inst. 59.
933. R. i;. Reekspear, 1 Mood. 342. R. v. (z) R. v. Allen, 1 Den. 364 See 43 &

Cozina, 6 C. & P. 351, Park, J. See R. u. 44 Vict. 45, ante, p. 955.
Cox, 1 Mood. 337. (a) 1 Hawk. o. 4, a. 2. 3 Co. Inst. 58,

(m) R. v. Jacobs, R. & R. 331. See 48 & 59.
49 Vict. 0. 69, 8. 11, post, p. 978. (6) Fost. 424, referring to Co. Ent. 351 b,

{v) R. t. Mulreaty, Hil. T. 1812. MS. as a precedent settled by great advice.
Bayley, J. But a person may be convicted (c) R. v. Allen, 1 0. &} K. 495. ' Gf

of an attempt to commit an unnatural R. v. Stride [1908], 1 K.B. 617.

CHAP. XL] Of Sodomy and Cognate Offences. 977

with regard to the evidence and manner of proof as in cases of rape.
The evidence should be plain and satisfactory, in proportion as the crime
is detestable {d).

Corroboration of the evidence of an accomplice is particularly to be
required and a conviction has been quashed where such corroboration
was not forthcoming and the judge did not sufficiently warn the jury
against convicting on such evidence uncorroborated (e).

A party consenting to the commission of an offence of this kind,
whether man or woman, is an accomplice, and requires corroboration.
On the trial of an indictment for an unnatural offence by a man upon
his own wife, she swore that she resisted as much as she could. Patteson,
J., said : ' There was a case of this kind which I had the misfortune to try,
and it there appeared that the wife consented. If that had been so here
the prisoner must have been acquitted ; for although consent or non-
consent is not material to the offence, yet as the wife, if she consented,
would be an accomplice she would require confirmation ; and so it would
be with a party consenting to an offence of this kind, whether man or
woman ' (/).

Where on an indictment for bestiality the offence was alleged to have
been committed on December 17, 1842, but no complaint was made to
the justices until October, 1844, and the first witness being asked why he
did not mention the offence until so long a time had elapsed, said he did
so, but it was not to a magistrate, and there was no confession, and
nothing offered by the counsel for the prosecution to explain the delay ;
Alderson, B., told the jury, ' I ought not to allow this case to go further.
It is monstrous to put a man on his trial after such a lapse of time.
How can he account for his conduct so far back 1 If you accuse a man
of a crime the next day, he may be enabled to bring forward his servants
and family to say where he was and what he was about at the time ;
but if the charge be not preferred for a year or more, how can he clear
himself? No man's life would be safe if such a prosecution were
permitted. It would be very unjust to put him on his trial ' {g).

In the case of offences against ss. 61 & 62 against a child under thirteen
it is no defence to prove that the child was a consenting party {h). Mere
submission by children is not equivalent to consent {i).

In a prosecution for an unnatural offence, an admission by the prisoner,
that he had committed such an offence at another time, and with another
person, and that his natural inclination was towards such practices, ought
not to be received in evidence {j).

In cases where it is not probable that all the circumstances necessary
to constitute this offence will be proved it may be advisable only to prefer

(d) 4 Bl. Com. 215. inflicted upon her against her consent.'

(e) R. V. Tate [1908], 2 K.B. 680 : 77 C. S. G. See post, Bk. xiii. c. v.
L. J. K.B. 1043. [g) R. v. Robins, 1 Cox, 114.

(/) R. «. Jellyman, 8 C. & P. 604. 'Per- [h) 43 & 44 Viot. o. 45 (ante, p. 955).

haps it may be doubtful whether a wife. This overrides R. v. WoUastou, 12 Cox,

who consented, would at common law be 180 (C. C. R.).

a competent witness against her husband. (i) R. v. Look, L. R. 2 C. C. R. 10.

The cases, in which she has been held (j) R. v. Cole, Buckingham Sum. Ass.

competent as a witness against him in 1810, and by all the judges, M. T. following,

criminal proceedings, are oases of injuries MS. C. C. R. 1. 1 Phill. Bvid. 499.

VOL. I. 3 R

978 Of Offences against Nature. [book ix.

an indictment for an assault with intent to commit an unnatural crime.
And it should be observed, that the mere soliciting another to the
commission of this crime has been treated as an indictable offence {k).

By sect. 11 of the Criminal Law Amendment Act, 1885 (48 & 49
Vict. c. 69), ' Any male person who, in public or private, commits or is a
party to the commission of or procures or attempts to procure the com-
mission by any male person of, any act of gross indecency with another
male person, shall be guilty of a misdemeanor, and being convicted
thereof shall be liable at the discretion of the Court to be imprisoned for
any term not exceeding two years, with or without hard labour ' (Z).

The consent of the other male person is no defence. On a charge
under s. 11, where the prisoner had procured the commission by
another male person of an act of gross indecency with the prisoner
himself, it was held that he had committed an offence against the
section (m).

Where an offence under the above section or under sect. 62 of the
Act of 1861 is committed with a person under sixteen, the rules of
evidence of Part II. of the Children Act, 1898 (8 Bdw. VII. c. 67) (w),
apply.

The rule as to the admissibility of complaints applying to offences
against women (o) appears not to apply to a criminal prosecution for the
offences with male persons referred to in this chapter (p).

Offences against sect. 61 of the Act of 1861 and sect. 11 of the Act of
1885 are not triable at Quarter Sessions {q), but an offence against sect.
62 of the Act of 1861 is there triable.

(it) See R. V. Kanaford, 13 Cox, 9, and (o) Stated, ante, p. 943.

a precedent of an indictment for suoli a (p) See R. v. Hoodless, 64 J. P. 282. In

solicitation, 2 Chit. Or. L. 50. For Chesney v. Newsholme [1908], Prob. 301,

the principles and cases upon which such 307, the rule in R. v, Lillyman and R. v.

an indictment may be supported, see ante, Osborne was applied by Sir Lewis Dibdin,

pp. 203 et seq. For an instance of an indict- to proceedings under the Clergy Dioipline

ment for conspiracy to commit an ofience Act, 1892, in respect to misconduct by a

against s. 61, see R. v. Boulton, 12 clergyman with choir boys. Acting on

Cox, 87. the rule he admitted a statement made by

{I) This enactment punishes practices a boy to his mother in answer to questions

which in R. v. Jacobs, R. & R. 331, R. v. on the day of and very soon after the

Wollaston, 12 Cox, 180 (C. C. R.), and R. v. alleged oflfence and excluded a further

Rowed, 3 Q.B. 180, were held not punish- statement made on the next day when

able at common law or the statutes then in pressed by his mother and after he had been

force. mixing all day with his schoolfellows.

- (m) R. V. Jones and Bowerbank [1896], (}) 5 & 6 Vict. c. 38, s. 1. 48 & 49 Vict.

1 Q.B. 4. c. 69, B. 17, post. Vol. ii. p. 1932.

(n) Vide ante, pp. 918-924.

( 978a )

CANADIAN NOTES.

OP OFFENCES AGAINST NATURE.

Sec. 1. — Of Incest, Punishment for.— Code sec. 204.

Prior to the statute, 53 Vict. (Can.) eh. 37, sec. 8, from which this
section is taken, it seems that incest, unless committed under circum-
stances amounting to rape, was not punishable in Ontario, as the eccles-
iastical law of England was not introduced into that province. Re
Lord Bishop of Natal, 3 Moo. P.C. (N.S.) 115.

There were, however, statutes dealing with the offence in the Pro-
vinces of Nova Scotia, New Brunswick and Prince Edward Island.
R.S.N.S. (3rd series), eh. 160, sec. 2; R.S.N.B. ch. 145, see. 2; 24 Vict.
(P.E.I.) ch. 27, sec. 3. ^Queere, whether those statutes do not still
apply in those provinces as to cases of incest, for which no provision
is made by sec. 176.

Capacity. — On the principle of R. v. Hartlen, 2 Can. Cr. Cas. 12, a
boy under fourteen could not be convicted of this offence.

Attempt to Commit. — An attempt to commit incest is an indictable
offence punishable by seven years' imprisonment. Code sec. 570,

By Threats. — See Code sec. 216(g). See notes on "attempts," at
end of chapter 6, Book 1.

Evidence. — Oral evidence is not admissible to prove relationship on
a charge of incest in the Province of Quebec, arid the relationship must
be established by the production of extracts from the registers of civil
status, as required by the provincial laws of evidence made applicable
to criminal proceedings by the Canada Evidence Act, sec. 35, unless
the absence of such registers is proved. R. v. Garneau (1899), 4 Can.
Cr. Cas. 69 (Que.). It is not too late for the accused to object that
oral evidence is insufficient proof, after, the case for the prosecution
has been closed.

Sec. 1. — Of Sodomy and Cognate Offences.

Buggery, Definition of. — Code sec. 202.
Buggery, Penetration Sufficient. — Code sec. 7.
Buggery, Attempt to Commit. — Code see. 203.
Indecent Assault on Males, Punishment for. — Code see. 293.
Consent Procured hy Fraud. — Code sec. 292(6).
Capacity. — Although a boy under fourteen cannot be convicted of
sodomy, he may if the act be committed against the will of the other

9786 Of Offences Against Nature. [book ix.

party be punished for an assault under this section. R. v. Hartlen
(1898), 2 Can. Cr. Gas. 12; R. v. Allen, 1 Dennison's Cr. Gas. 364.

It is suggested that a boy under fourteen could, however, be con-
victed of an attempt to commit sodomy. (See the comments at the
end of Book 1, ch. 6.)

Evidence. — Upon the trial of the prisoner, a school teacher, for an
indecent assault upon one of his scholars, it appeared that he for-
bade the prosecutrix telling her parents what had happened, and they
did not hear of it for two months. After the prosecutrix had given
evidence of the assault, evidence was tendered of the conduct of the
prisoner towards her subsequent to the assault. Held, that the evi-
dence was admissible as tending to shew the indecent quality of the
assault, and as being in effect a part or continuation of the same
transaction as that with which the prisoner was charged. Per
Hagarty, G.J., and Armour, J. — The evidence was properly admis-
sible as evidence in chief. Reg. v. James Chute, 46 U.C.Q.B. 555.

Indictment. — An indictment under see. 293 (for indecent assault
on males) is defective even after verdict if it does not aver that the
parties to the offence are males. R. v. Montminy, W.B. (Que.), May,
1893.

( 979 )

CHAPTER THE TWELFTH.

OITENCES WITH EEFEEENCB TO MARRIAGE.

Sect, I. — Oe Bigamy.

Marriage as recognised by the law of England is a contract for the
voluntary union of one man and one woman to the exclusion of all others,
until that union is terminated by death {a), or is dissolved or annulled by
statute or by the decree of a competent tribunal (b). It is an offence
against English law to have a plurality of ' wives ' at the same time.
The offence is more correctly styled polygamy, but is usually described
as bigamy (c). It was originally of ecclesiastical cognisance only, and
though it is referred to as a capital crime in the Statute de Bigamis (4
Edw. I. {d)), the jurisdiction of the temporal courts was doubtful until
1603, when the offence was declared felony (1 Jae. I. o. 11). The Act of
James I. was in several respects defective. A person whose consort
though known to be living had been abroad seven years might have
married again, with impunity and so might a person who had been
divorced a mensa et thoro. That Act was repealed and re-enacted with
amendments in 1828 (9 Geo. IV. c. 31, s. 22).

By the Offences against the Person Act, 1861 (24 & 25 Vict. c. 100),
s. 57 (e), ' Whosoever, being married, shall marry any other person during
the life of the former husband or wife (ee), whether the second marriage
shall have taken place in England or Ireland or elsewhere, shall be guilty
of felony, and being convicted thereof shall be liable ... to be kept in
penal servitude for any term not exceeding seven years . . . (/), and
any such offence may be dealt with, inquired of, tried, determined, and
punished in any county or place in England or Ireland where the offender
shall be apprehended or be in custody, in the same manner in all respects
as if the offence had been actually committed in that county or place.

' Provided that nothing in this section contained shall extend ' (1) ' to
any second marriage contracted elsewhere than in England and Ireland by
any other than a subject of His Majesty,' or (2) ' to any person marrying

(a) See Hyde v. Hyde, L. R. 2 P. & D. one after the death of the other ; or in once

130. Cf. Brinkley v. Att.-Gen., 15 P. D. 76. marrying a widow. 4 Bl. Com. 163, note

This definition excludes unions which are (6). And see Bac. Abr. tit. ' Bigamy," in the

subject to the power of the husband or notes.

wife to take other wives or husbands while (d) Eep. in 1863 (26 & 27 Vict. c. 125)

the first is aUve. Re Bethell, 38 C!h. D. 220. as to England ; and in 1872 (35 & 36 Viet.

I*' (6) Until 1857 a marriage could be o. 98) as to Ireland,

dissolved in England only by legislation. (e) This section re-enacts 9 Geo. IV. c. 31,

ia said to mean only being twice married, (ee) Vide post, p. 1006.

and not having a plurality of wives at once. (/ ) For other punishments see 54 & 55

According to the canonists, bigamy con- Vict. c. 69, s. 1, ante, pp. 211, 212. The

sisted in marrying two virgins successively words omitted are repealed.

3r2

980 Offences as to Marriage. [book ix.

a second time whose husband or wife shall have been continually absent
from such person for the space of seven years then last past, and shall
not have been known by such persons to be living within that time (g),
or shall extend ' (3) ' to any person who, at the time of such second
marriage, shall have been divorced from the bond of the first marriage ' (h),
or (4) ' to any person whose former marriage shall have been declared
void by the sentence of any Court of competent jurisdiction ' (i).

As to the punishment of principals in the second degree and acces-
sories before or after the fact, see 24 & 25 Vict. c. 94 and 24 & 25 Vict,
c. 100, s. 67, ante, pp. 130 et seq.

Accessories. — Where an indictment charged a woman with bigamy
and the man, with whom she contracted the second marriage, with inciting
and counselling the woman to commit the ofEence of bigamy, it was held
that if the man knew at the time of the marriage that she was a married
woman, and her husband alive, he might be convicted of counselling her
to commit the crime of bigamy (j). This indictment did not contain any
count charging the man as principal in the second degree ; but there is
no doubt, where a man marries a woman, knowing such woman to have
a husband alive at the time of such marriage, that he is a principal in the
second degree, as he is present and aids and assists the woman in commit-
ting the felony (k).

Venue. — The effect of the first proviso is to make it an offence within
sect. 57, triable in England (or Ireland) for a British subject to contract a
bigamous marriage in Scotland (I) or in any other part of the world outside
England or Ireland, whether within or without the King's dominions {m).

The effect of the enactment taken with the proviso is that bigamy by
British subjects wherever committed is cognisable in England under the
section : though in the absence of Imperial legislation the Courts of British
possessions are as a general rule unable to try bigamy outside the
possession by British subjects domiciled or ordinarily resident in the
possession (n).

It is immaterial where the first marriage was celebrated if the second
was solemnized in England or Ireland : and where the defendant is a
British subject it is immaterial where either the first or the second
marriage was celebrated, if after the bigamous marriage the offender
is arrested in England (or Ireland).

Indictment. — An indictment for bigamy states the first marriage and
goes on to charge that ' whilst so married to A. B.' the prisoner feloniously

{g) Post, p. 1008. (m) Earl Russell's case [1901], A. C. 446.

{h) Post, p. 1010. 70 L. J., K.B. 998 ; 2 Cox, 51 : where the

(i) Post, p. 1011. second marriage was contracted in the

(}■) R. V. Brawn, 1 C. & K. 144, Denman, United States, after a divorce there granted

C.J., vide post, p. 1009. from the prior marriage, but regarded as

(k) ' I know such to have been the invalid by English law. See R. v. Griffin,

opinion of Denman, C.J., and Alderson, B., 4 L. R. Ir. 497.

in R. V. Brawn.' C. S. G. (n) Maoleod v. Att.-Gen. of N. S. W.

(I) R.i;. Topping, Dears. 647, 25 L. J. M.C. [1891], A. C. 453. R. v. Hilaire [1903],

72, decided on the similar enactment 9 3 N. S. W. State Rep. 228. But see re

Geo. IV. 0. 31, s. 22 (E). 1 Jac. I. c. 11, Bigamy Laws of Canada [1897], 27 Canada

applied only to bigamous marriages con- Supr. Ct. 461. R. v. Brinkley [1907], 12

tracted in England and Wales. Kel. (J.) Canada Cr. Cas. 454, on s. 306 of the

79, 80; 1 Hale, 692 693; 1 East, P. C. 465. Canadian Criminal Code, 1906.

CHAP. XII.] Of Bigamy. 981

did intermarry with C. D., ' the said A. B., his former wife, being then
alive ' (o).

It is not necessary to state more than the name of the second wife (p).
In a case decided before 1851, where the second wife was described as a
widow but proved to be a spinster, this was held a fatal variance {q).
But such a variance is now amendable (r).

On an indictment for bigamy which described the first wife as ' Ann
G.,' an examined copy of the certificate (s) of the marriage of the prisoner
and ' Sarah Ann G.' was put in, and there was no evidence to explain
the difference in the names : Maule, J., directed an acquittal {t).

It is not necessary to state that the prisoner was apprehended or is
in custody (m) in the county or place in which he is to be tried [v), nor to
negative the second exception {w) nor in a case where the second marriage
was contracted elsewhere than in England and Ireland to aver that the
prisoner is a British subject (x). Indeed according to the reasoning of
R. V. Audley {swpra), whatever be the burden of proof it is not necessary
to make any express mention on the indictment of any of the four
exceptions.

First Marriage. — To support an indictment for bigamy it is necessary
to prove that there has been a marriage in fad, that it is valid, i.e. not
void ab initio, and subsisting, i.e. not put an end to by the death of one
of the spouses, or by divorce a vinculo, nor declared null.

In Fact. — It is not sufficient to prove a first marriage by acknowledg-
ment (y), cohabitation, or habit and repute, or by production of marriage

(o) The words whilst so married to A. B. the accused was apprehended or is in

are superfluous and it is for the defence to custody (s. 57), and see R. v. Gordon,

set up that the marriage has been annulled R. & R. 48. Lord Digby's ease, Hutt, 131.

or dissolved. See Murray v. R., 7 Q.B. The reason given to support the statement

700. In that case error was brought in in the trial is that it will appear by the

1845 on a judgment given in 1815 on an caption that the prisoner was in Ehe custody

indictment for bigamy under 35 Geo. III. of the sheriff (or gaoler) in the county in

u. 57, B. 1 (rep.), probably in consequence which the indictment is found. R. v.

of a doubt thrown on the vaUdity of the Whiley, rightly reported 1 C. & K. 150,

first marriage in R. v. Milhs, 10 CI. & F. erroneously reported 2 Mood. 186. See

534 ; 8 E. R. 844. See also R. v. Apley, 1 R. v. Smythies, 1 Den. 498 ; 2 C. & K. 878.

Cox, 71. In R. <j". Fraser, 1 Mood. 407, the first

(p) R. V. Deeley, 1 Mood. 303 ; 4 C. & P. marriage was laid in Kent, the second in

579. Surrey, the venue was Middlesex, and it

iq) Id. ibid. we^s alleged that the prisoner was appre-

(r) 14 & 15 Vict. i;. 100, a. 1, post. Vol. ii. hended without stating any place, and the

p. 1972. conviction held bad, but no suggestion was

(s) Quaere, Register. made that the defect was cured by the

(t) R. V. Gooding, C. & M. 297. Maule, caption ; this case, therefore, may now be

J., thought that ' evidence might perhaps considered no authority. See R. v.

be offered to explain the circumstance of O'Connor, 5 Q.B. 16, 34. R v. Treharne,

this difference in the name of the prisoner's 1 Mood. 298. Where an indictment for

first wife, as she is described in the indict- bigamy alleged that the prisoner was

ment, and as described in the marriage apprehended in Gloucestershire, and this

certificate ; and even in the absence of was not proved ; ChanneU, B., allowed the

such evidence, proof might be supplied indictment to be amended by stating that

that the woman was known by both he was in custody in that county. R. v.

names.' Smith, 1 F. & F. 36.

(u) The words ' in custody ' were not in (w) Ante, p. 979.

1 Jac. I. c. 11. (x) R. V. Audley [1907], 1 K.B. 383 : 76

(u) The offence is triable either where L. J. K.B. 270.

the second marriage was contracted (at (y) The admission of the accused was

common law, 1 Hale, 694 ; 3 Co. Inst. 87. rejected in R. v. Lindsay, 66 .7. P. 505, post,

Starkie, Cr. PI. 11, and arvte, p. 19), or where p, 983.

982 Offences as to Marriage. [book ix.

articles : and it is essential to give evidence that the marriage was actually
solemnised in a manner recognised by the law of the parties, or of the
place of celebration {z). Though a lawful canonical marriage need not
be proved, yet a marriage in fact, regular or not, must be proved {a),
i.e. prima facie evidence must be given of a lawful marriage (b). But
a marriage in fact may be sufficiently estabhshed by proving that the
ceremony took place between the parties without proving the preliminary
notices (6), licences (c), banns (d), or consents (e), or residence for the
prescribed period (ee), or that the place of solemnisation was one where
the ceremony might lawfully be performed or the celebrant a person
competent to officiate (/).

It is not quite clear upon the authorities whether, if the first marriage
is alleged to have been outside England and Ireland, evidence showing a
marriage by habit and repute if valid by the foreign law will suffice on a
prosecution in England for bigamy.

In E. V. Wilson (g), upon an indictment for bigamy it was proved
on the part of the prisoner that her first husband, before he married her,
had been in Canada, and that he was absent for about two years, and
when he returned he said he had brought his wife with him, and a lady
accompanied him, whom he treated as his wife, and everyone else
regarded her in that capacity ; she had been heard of as being aUve after
the prisoner's first marriage ; and thereupon Crompton, J., interposed,
and said that there was evidence of a prior marriage, and, although there
might be some technical difficulty in proving the marriage in Canada,
still if there was reasonable doubt of the fact, the prisoner ought to
be acquitted, and the jury said that it was unnecessary to hear anymore
evidence {h).

In Truman's case (i) it was held that proof of the prisoner's cohabiting
with and acknowledging himself married to a former wife then living, such
assertion being backed by his producing to the witness a copy of a
proceeding in a Scotch Court against him and his wife for having contracted
the marriage irregularly (but nevertheless validly) was sufficient evidence
of the first marriage. The point being reserved, all the judges who were
present held the conviction proper. Two of them observed that this did
not rest upon cohabitation and bare acknowledgment, for the defendant
had backed his assertion by the production of the copy of the proceeding ;
but some of the judges thought that the acknowledgment alone would
have been sufficient, and that the paper produced in evidence was only

{z) Catherwood v. Caslon, 13 M. & W. (h) The defence set up a marriage by

261. See Morris v. Miller, 4 Burr. 2059. habit and repute prior to the first marriage

Smith V. Huson, 1 Phillimore 287, 314. stated in the indictment. See Hamblin

1 Hawk. 0. 42, s. 9. Geary on Marriage, v. Shelton, 3 P. & F. 133 ; and Doe d.

25. Fleming v. Fleming, 4 Bing. 266, for

(a) By Denison, J., referred to by the evidence in civil oases.
Court in Morris v. Miller, 1 W. Bl. 1, 632. (i) Nottingham Spr. Assizes, 1795,

(6) R. V. Brampton, 10 East, 287, decided upon by the judges in East, T.

note (6). 1795, MS. Jud. 1 East, P. C. 470, 471 ;

{d) R. V. Allison, R.& R. 109, po«(,p. 992. of a bare acknowledgment in evidence in

(ee) Vide post, pp. 993. 994. statement made by a prisoner is evidence

(/) R. V. Hind, R. & R. 253. against him, though it may under circum-

ig) 3 F. & F. 119. stances be entitled to little or no weight.

CHAP. XII.] Of Bigamy. 983

a confirmation of such acknowledgment. In Upton's case {j), where
it was proved that the prisoner being charged with bigamy made a
statement before a justice, in which he expressly declared that he had
married his first wife, who was then present ; Erskine, J., left the case
to the jury, observing that this was not an incautious statement made
without due attention, but that the prisoner's mind was directed to the
very point by the charge made against him.

In R. V. Newton {k), upon an indictment for bigamy it appeared that
the prisoner returned from America with a woman described in the
indictment as M. C, with whom he lived as his wife for some years after-
wards ; and that soon after his return he told her sister that he had been
married to M. C. at New York by a Presbyterian minister, and he subse-
quently caused the bellman at Oldham to give public notice, which he
did, that no one was to give credit to ' M., the wife of J. N.' ; and some
time afterwards M. N., describing herself as his wife, complained to a
magistrate of his having ill-treated her, and the prisoner attended before
the magistrate, and did not deny the alleged marriage, but said he could
no longer live with her on account of her jealousy, and consented to allow
her eight shillings a week ; Wightman, J., after consulting Cresswell, J.,
told the jury that the question was, whether they were satisfied by the
statements made by the prisoner on the various occasions referred to that
he had been married to M. 0. in America, and that such marriage was a
vahd one according to the law in force at New York. That declarations
lightly or hastily made were entitled to very little weight in such a case ;
but what the prisoner said deliberately, and when it was obviously his
interest to deny marriage, if he did not know it to be a vaM one, was
undoubtedly evidence entitled to the very serious consideration of the
jury.

In R. V. Flaherty (Z), the prisoner went to a police-station and said
that he wanted to give himself up for bigamy. He stated when and where
the first marriage took place, and while in custody signed a statement
to that effect. Pollock, C.B., ruled that the statement, though some
evidence of a first marriage, was not enough to justify conviction for
bigamy.

In R. V. Savage (m). Lush, J., declined to follow R. ■;;. Newton, and
held the prisoner's admission that he had married his first wife in Scotland,
insufficient to prove the validity of that marriage {n).

In R. V. Lindsay (o), on an indictment for bigamy, the evidence
tendered of the former marriage was a certificate of the priest-in-charge
of a Roman Catholic church, by whom it was said that the marriage had
been solemnised, coupled with identification of the prisoner as one of the
parties to the marriage, and proof of a statement made by him when
arrested, ' That 's aU right, but I did not know my former wife was alive/
Walton, J., following R. v. Savage, held this evidence insufficient to prove
the first marriage.

(j) Gloucester Spr. Ass. 1839. See (I) [1847] 2 C. & K. 782.

Dickinson v. Coward, 1 B. & Aid. 679, (m) 13 Cox, 178.

EUenborough, C.J. (») He relied on the Sussex Peerago

(k) 2 M. & Rob. 503. S. C. as R. v. Claim, 11 01. & F. 85 ; 8 E. R. 1034.

Simmonsto, 1 C. & K. 164. (o) [1902] 66 J. P. 505.

984

Offences as to Marriage.

[BOOK IX.

Neither party to the former marriage stated in the indictment is a
competent witness for the prosecution to prove the marriage or for any
purpose {p).

The prisoner was indicted for having married A. W., his first wife,
A. A., being alive ; the prisoner's first marriage with A. A. was proved.
The prisoner's defence was, that the first marriage was void, as A. A.
had a husband living at the time, and he proposed to call A. A. to prove
that fact ; it was objected to her competency that the fact of her marriage
with the prisoner having been proved, she must be taken to be his lawful
wife. Alderson, B., was at first inclined to think that she might be
examined simply to the fact of her being the wife or not of the prisoner ;
but after conferring with Williams, J., he determined not to receive her
evidence, but to reserve the point (q). But where a woman called as a
witness against a prisoner, proved on the voire dire (r) that she married
the prisoner in 1849, Erie, J., held that she might also prove on the voire
dire that she had a sister seven years older than herself, and that they
had been brought up together with their parents, and that she always
believed that they were sisters, and that her sister had married the
prisoner in 1846, and died in 1848 ; for if a person is questioned on the
voire dire with the view to raise an objection to her competency,
she may also be examined to remove that prima faci,e ground of
objection (s).

And in E. v. Ayley (t), the alleged first wife was called as a witness

ip) 1 Hale, 693. 1 East, P. C. 469.
1 Hawk. c. 42, s. 8, where a case at the
Old Bailey (Feb. 1786) is cited to shew that
an affidavit by the first wife to support an
application to adjourn the trial was
rejected. See E. v. Green, Nov. 18, 1899,
Wills, J. Archb. Cr. PI. (23rd ed.), 1169.
Under the Criminal Evidence Act, 1898,
post. Vol. ii. p. 2271, the defendant and the
husband or wife of the defendant are
competent witnesses for the defence.

(}) R. V. Peat, 2 Lew. 288. The
prisoner was acquitted. The first im-
pression of the learned baron seems to have
been correct. The oidy ground on which
the witness could be rejected was, that she
was the lawful wife of the prisoner ; for
' the general rule does not extend to a wife
de facto, but not de jure.' 2 Stark. Evid.
132 (2nd ed.). In Wells v. Fletcher, 5 C.
& P. 12, 1 M. & Rob. 99, 1. woman called
for the defendant on examination on the
voire dire, said she had been married to the
plaintiff, and on re-examination that she
was married to another person previously ;
but not seeing him for thirty years, she
thought he was dead, and therefore
married the plaintiff, but afterwards found
that her first husband was living ; and
Patteson, J., held that the witness was
competent, as the second marriage was a
nullity. If R. v. Peat case had been an
indictment for larceny, and the witness
called for the prisoner had proved her
marriage to him on the voire dire, Wells v.

Fletcher shews that she might have been
rendered competent by proving her previ-
ous marriage, and it is difficult to see how
proof by other evidence that she had
married the prisoner, whether such evidence
was given before or after she was called,
could render her incompetent ; for her
evidence would not be inconsistent with
such evidence, as it would admit the
marriage with the prisoner, but shew that
it was void. R. v. Bathwick, 2 B. & Ad.
639, shews that the competency of the wife
does not depend upon the marshalling of
the evidence, or the particular stage of the
case in which she may be called ; if, there-
fore, in Peat's case the witness had been
called before her marriage with the prisoner
had been proved and she would have been
competent to prove her previous marriage,
it is difficult to see how her marriage with
the prisoner having been proved before
she was called could render her incompe-
tent, and it certainly would operate hardly
on a prisoner, if such were the case, for
the prosecutor might in the course of
his case prove the marriage of the witness
with the prisoner, and the prisoner might
have no one except the witness to prove
the former marriage. It may be added
that Lord Hale says that a second wife is
not so much as a wife de facto. C. S. G.

(r) As to the meaning of voire dire, see
post, Bk. xiii. u. v.

(s) R. V. Young, 5 Cox. 296.

(t) 15 Cox, 328.

CHAP. XII.] Of Bigamy. 985

after production of a certificate of her previous marriage to another man
and his death before her marriage to the prisoner.

The woman with whom the prisoner is alleged to have feloniously-
intermarried is a competent witness so soon as the former marriage is
established.

It has not been thought necessary to set forth in detail, as in former
editions, the numerous statutes regulating the celebration of marriages (m)
or vaUdating marriages not celebrated according to law {v).

The only grounds on which a marriage solemnised in England can be
treated as invalid are : —

(1) That it was solemnised in a place not licensed nor authorised nor
registered.

(2) That it was solemnised by or before a person not having
authority to officiate at the marriage in question, whether civil or
religious.

(3) That some necessary condition was deliberately not observed.

(4) That the parties were incapable of marriage, e.g. by reason of
nonage or lunacy.

(5) That the parties could not lawfully intermarry because of consan-
guinity or affinity or because one or both of them was already in vinculo
matrimonii.

Where the marriage took place outside England the evidence must
go to shew that the marriage was solemnised in a form recognised as
constituting a valid marriage by the laws of the country under whose forms
the marriage was celebrated : i.e. a marriage in the sense of English law (w).

The common law requisite in point of form for a valid marriage in
England is celebration in facie ecclesiw,i.e. by an episcopally ordained mini-
ster (x). Owing to the provisions of the Marriage Acts, 1823-1898, proof
of a common-law marriage in England is not sufficient for the purposes of an
indictment for bigamy. But when the marriage is at sea (y) or within
the British lines by a chaplain or officer or other person officiating under

(m) See Geary on Marriage. Chit. Stat. marriage per verha de praesenti or per verba

tit. ' Marriage.' Hammick on Marriage. defuturo was abolished m 1754 (20 Geo. III.

(v) Such of the numerous confirmation c. 33, s. 13, re-enacted in 1823 as 4 Geo.

and validation Acts as are printed as public IV. c. 76, s. 27). In Lyon's case, Old

general Acts are enumerated in Appendix Bailey (1738, 1 Bast, P. C. 469, citing

VII. to the Otficial Index to the Statutes. ■ Serjeant Foster's MS.), Willes, C.J., seems

Those which are local and personal are to have been of opinion that a marriage

enumerated in the Index to Local and in England by a priest of the Church

Personal Acts, 1801 - 1899. By the of Rome was good if the ceremony

Provisional Order Marriages Act, 1905 of that Church in the words of the con-

(5 Edw. VII. 0. 23), power is given to a traoting party could be proved. East

Secretary oi State by provisional order, to seeks to limit this to persons of the Roman

be confirmed by Parliament, to remove the allegiance. See R. v. MilUs, tcbi supra.

invalidity of or doubts as to marriages in Sussex Peerage Claim, 6 St. Tr. (N. S.)

England which are invalid or doubtful by 79. Under the present Marriage Acts such

reason of some informality. a marriage in England is not valid unless

(to) Ante, p. 979. celebrated under the statutory conditions.

{x) R. V. MilUs, 10 CI. & P. 534: 8 E. R. {y) Culling v. CulUng [1898], Prob. 116.

844. In this respect English law differs from Du Moulin v. Druitt, 13 Ir. C. L. Rep. 212.

that of Scotland and from the canon law as See 55 & 56 Vict. c. 23, ss. 12, 23, Marriage

recognised in Europe before the council of Order in Council, 1892 (public vessels).

Trent. See Geary on Marriage, 3. The 57 & 58 Vict. i;. 60, ss. 240, 242 (merchant

jurisdiction of Ecclesiastical Courts to ships),
decree specific performance of contracts of

986 Offences as to Marriage. [book ix.

the orders of the commanding officer of a British army serving abroad (2)
or where no local authority can celebrate a valid marriage a common-
law marriage between British subjects seems to be regarded as valid (a).

Under the existing law a marriage may be solemnised in England
without a religious ceremony, or with the rites and ceremonies of the
Church of England or of any other religious body, and every marriage
solemnized under the Marriage Acts, 1836, 1837, 1840, and 1856, is good
and cognizable in like manner as a marriage before the passing of the Act
of 1836 according to the rules of the Church of England (6).

Form. — All the statutes regulating the celebration of a marriage in
England require that the ceremony shall take place in the presence of
two or more credible witnesses besides the officiating clergyman (c) or
authorised person in whose presence the marriage is celebrated (d) or the
civil registrar (e) or marriage officer by or in whose presence it is cele-
brated (/). In the case of marriages before a civil registrar or in a
registered building (not of the Church of England) whether in the presence
of an authorised person or of the civil registrar, the marriage must be
celebrated with open doors (g). They also require that the marriage
shall be registered in duplicate in the register provided by the Registrar-
General for the purpose and authorise the clergyman, &c., to ask the
parties as to the particulars required to be registered (h).

Each entry shall be signed by the parties and the clergyman (h) or
authorised person (i) or registering officer (/) and attested by two witnesses.
The statutes do not say, but certainly mean, that the witnesses signing
should be witnesses of the marriage and not merely of the fflhng-in of
the register, and the scheduled form of registry makes this clear.

Presumption in Favour of Validity. — ^In CatteraU v. Sweetman (k),
Dr. Lushington said : ' Viewing the successive Marriage Acts it appears
that prohibitive words without a declaration of nullity were not considered
by the legislature as creating a nullity : and this is a legislative interpre-
tation of Acts relating to marriage. And not only is all legal presumption
in favour of the validity and against the nullity of a marriage, but it is
so on this principle : a legislative enactment to annul a marriage de facto

(2) R. V. Brampton, 10 East, 282. (Church of England). 6 & 7 Will. IV.

Euding V. Smith, 1 St. Tr. (N. S.) 1053. c. 85, s. 23 (marriages in presence of

2Hagg. (Consist.)371. Waldegrave Peerage registrar). 55 & 56 Vict. c. 23, 3. 9 (British

Claim, 4 01. & P. 649 ; 7 E. R. 247. Foreign marriages abroad). 61 & 62 Vict. 0. 58,

Marriage Act, 1892 (55 & 56 Vict. 23), s. 22. ». 7 (marriages before authorised persons

(a) 19 & 20 Vict. c. 119, s. 23 ; 61 & 62 without attendance of registrar). As to
Vict. 0. 58, s. 4 ; and as to marriages under Quakers and Jews, see post, p. 998.
British law in foreign parts, 55 & 56 Vict. (i) 61 & 62 Vict. c. 58, ss. 6 (3), 7.

u. 23, S3. 1, 22, 23. (j) i.e. the civil registrar in cases where

(b) Post, pp. 987, 989. the marriage is civil or his attendance at a

(c) 4 Geo. IV. c. 76, s. 28 (Church of religious ceremony is essential or required ;
England). 6 & 7 Will. IV. c. 85, ss. 20, 21 ; 61 & 62

{d) 61 & 62 Vict. c. 58, s. 6 (3). Vict. i;. 58, s. 10. In the case of Jews it

(e) 6 & 7 Will. IV. 0. 85, ss. 20, 21. 61 & is the secretary of the synagogue to which

62 Vict. c. 58, s. 10. the husband belongs (6 & 7 Will. IV. c. 86,

(/) 55 & 56 Vict. c. 23, s. 8 (British ss. 30, 31 ; 19 & 20 Vict. c. 119, a. 22) : and

marriages in foreign parts). in the case of Quakers the registering officer

(g') 6 & 7 Will. IV. c. 85, s. 20, 21. 61 & certified for the district by the recording

62 Vict. 0. 58, s. 6. As to the hours clerk of the Society of Friends (6 & 7 Will,

between which marriage is to be celebrated, IV. c. 86, ss. 30, 31).
see post, p. 1016. {k) [1845] 1 Rob. (Eccl.) 304, 317.

(^) 6 & 7 Will. IV. c. 86, ss. 31, 40

CHAP, xii.] Of Bigamy. 987

is a penal enactment, and not only penal to the parties but highly penal
to innocent offspring, and therefore to be construed according to the
acknowledged rule most strictly' (?).

As a general rule production of the certifioate of the marriage in the
proper form is sufficient prima facie evidence of the validity in point of
form of the marriage, without proof of the status of the officiating
minister, of the licensing (m) or registration (n) or official character of
the building, and of compliance with other statutory requirements (o),
such as publication of banns (p), or celebration with open doors (q).
Place. — A marriage to be valid must be celebrated —
(i) in a church or chapel of the Church of England, licensed by the
proper ecclesiastical authority for the solemnisation of marriages (r) ;

(ii) at the office and in the presence of the superintendent registrar
of the district (s) ; or

(iii) in a building certified according to law as a place of religious
worship (not of the Established Church) and registered for solemnising
marriages and specified in the notice of the marriage in question (t).

These rules as to place do not apply to marriages by special
licence of the Archbishop of Canterbury or by the usages of the Society
of Friends or the practice of the Jewish religion.

In the following cases marriages are declared void for non-compliance
with the directions of the Marriage Acts : —

(i.) Church of England.— By the Marriage Act, 1823 (4 Geo. IV. c. 76),
sect. 22, ' If any persons shall knowingly and wilfully intermarry in any
other place than a church, or such public chapel wherein banns may be
lawfully published, unless by special licence as aforesaid {i.e. of the
Archbishop of Canterbury) or shall knowingly and wilfully intermarry
without due publication of banns, or licence from a person. or persons
having authority to grant the same first had and obtained, or shall
knowingly and wiHuUy consent to or acquiesce in the solemnization of
such marriage by any person not being in holy orders, the marriages of
such persons shall be nuU and void to all intents and purposes
whatsoever ' (u).

(ii. & iii.) General.— By sect. 42 of the Marriage Act, 1836 (6 & 7 WiU.
IV. c. 85), ' If any person shall knowingly and wilfully {v) intermarry '
(after March 1, 1837) ' under the provisions of this Act in any place other

(l) Vide ante, p. 1. place. R. v. Clarke, 10 Cox, 474. But

(m) R. V. Cresswell, 1 Q.B.D. 446. see Mayhew v. Mayhew, 2 Phillim. 11. Se

(») B. V. Cradook [1863], 3 P. & P. 837 Rutter [1907], 2 Ch. 592, 595. In a case

(Nonconformist chapel). Siohel v. Lambert where the parties were misdescribed it was

[1864], 15 C. B. (N. S.) 761 (Roman ruled on an indictment for bigamy that the

Catholic chapel). prosecution to establish the validity of the

(o) Campbell v. Corley [1856], 28 L. T. marriage must shew that one of the parties

(0. S.) 109. was unaware of the misdescription. E. v.

(p) R. (/. Bowen, 2 0. & K. 227. Kay, 16 Cox, 292, Huddleston, B.
(q) Campbell v. Corley, uhi sup. (v) Apparently both parties must act

(r) 4 Geo. IV. c. 76, s. 22 {infra) ; 6 & with knowledge and deliberate intention.

7 Will. IV. c. 85, s. 42 (infra). R. v. Rea, L. R. 1 C. C. R. 365. See Greaves

(s) 6 & 7 Will. IV. c. 85, s. 42. v. Greaves, L. R. 2 Prob. 243. Lane v.

it) 6 & 7 Will. IV. c. 85, s. 42. Goodwin, 4 Q.B. 361 (Ucence). As to the

(u) Under this section to make a mar- Irish law, see Be Knox, 23 L. R. (Ir.) 542,

riage invalid, both parties must know that Warren, J.

no due pubUoation of banns had taken

988 Offences as to Marriage. [book ix.

than the church, chapel, registered building, or office or other place speci-
fied in the notice and certificate aforesaid, or without due notice (w) to the
superintendent registrar or without certificate of notice duly issued, or
without licence in case a licence is necessary under this Act, or in the
absence of a registrar or superintendent registrar where the presence of
a registrar or superintendent registrar is necessary under this Act (x),
the marriage of such persons except in any case hereinafter mentioned
shall be null and void : Provided always that nothing herein contained
shall extend to annul any marriage legally solemnized according to the
provisions of the Marriage Act, 1823 ' (4 Geo. IV. c. 76).

It has been held that where a marriage notice was given under the
Marriage Act, 1856 (19 & 20 Vict. c. 119), which was false to the knowledge
of both parties, as to the name of the woman and in other respects, the
marriage was nevertheless valid (y).

Person Celebrating. — -A person competent to officiate at a marriage
cannot lawfully solemnise a marriage between himself and another
person without the presence of another person authorised to celebrate
marriages (2).

No one but a clergyman in holy orders of the Church of England can
validly celebrate a marriage in a church or chapel of the Church of
England or under the special licence of the Archbishop of Canterbury.

The presence of a superintendent registrar and of a registrar of the
district is essential for a purely civil marriage (6 & 7 Will. IV. c. 85, s. 20).

The presence of an authorised person is essential at a marriage in a
registered non- Anglican place of worship (a) unless the civil registrar is
present (61 & 62 Vict. c. 58, ss. 7, 15).

In the case of marriages under the Foreign Marriage Act, 1892, a
marriage officer must be present and may solemnise (55 & 56 Vict. c. 23, s. 8) .

Banns— False Name. — It seems that the assuming a fictitious name
upon the second marriage will not prevent the offence from being
complete (b). And it was decided to be no ground of defence, that upon
the second marriage (which was by banns) the parties passed by false
Christian names when the banns were published, and when the marriage
took place ; and it was further held that the prisoner, having written
down the names for the publication of the banns, was precluded thereby
from saying that the woman was not known by the name he delivered in,
and that she was not rightly described by that name in the indictment.
The indictment was against the prisoner for marrying Anna T. whilst
he had a wife living : the second marriage was by banns ; and, it appeared

{w) Holmes v. Simmons [1868], L. R. 1 the absence of the registrar (61 & 62 Viot.

P. D. & A. 523. In Beavan v. McMahon c. 58, s. 15).

[1861], 2 Sw. & Tr. 230 (licence), the (y) Re Rutter [1907], 2 Oh. 592, Eady, J.

man had deliberately suppressed one {z) Beamish v. Beamish, 9 H. L. G. 274 ;

of the Christian names of the woman. It 11 E. R. 735, the case of a person in holy

was held that the name given, Margaret orders performing his own wedding cere-

Beavan, might represent the woman, and mony without the attendance of another

that as the licence was issued for competent clergyman,

authority the marriage was valid. (a) This does not apply to Jewish or

{x) Sect. 42 is repealed in respect of Quaker marriages,

marriages authorised by and solemnised in (6) R. v. AlUson, post, p. 992. And see

accordance with the Marriage Act, 1898, R. v. Allen, post, p. 1009, and the question

by a person authorised under that Act, in as to the second marriage there discussed.

CHAP, xii.] Of Bigamy. 989

that the prisoner wrote the note for the publication of the banns, in which
the woman was called Anna, and that she was married by that name,
but that her real name was Susannah. Upon a case reserved two questions
were made : one, whether this marriage was not void, because there was
no publication of banns by the woman's right name, and that, if the
second marriage were void, it created no offence : and the other question
was, whether the charge of the prisoner's marrying Anna was proved.
But the judges held, unanimously, that the second marriage was sufficient
to constitute the offence ; and that, after having called the woman
' Anna ' in the note he gave in for the publication of banns, it did not lie
in the prisoner's mouth to say that she was not known as well by the
name of Anna as by that of Susannah, or that she was not rightly called
by the name of Anna in the indictment (c).

So where the prisoner contracted the second marriage in the maiden
name of his mother, and the woman he married had also made use of
her mother's maiden name, it was unanimously resolved by all the judges
that the prisoner was rightly convicted {d).

So where the second wife had never gone or been known by the name
of Thick, but had assumed it when the banns were published, that her
neighbours might not know she was the person intended, it was held
that the parties could not be allowed to evade the punishment for their
offence, by contracting a concertedly invalid marriage (e).

In Mayhew ?;. Mayhew (/), where S. White, spinster, was married by
banns as S. Kelso, widow, the marriage was held good though both
parties were aware of the misdescription.

Misdescription of the parties in a notice for marriage before a registrar,
though it renders the parties liable to penalties does not render the
marriage void (gr).

Notices. — The prisoner was married a second time before the registrar,
describing himself as Benjamin Eea, his true name being Edward Rea.
There was no evidence to shew the wife knew of this, and the man was
held to be rightly convicted of bigamy, as the effect of the Marriage Act,
1836, ss. 4, 42, is to render invalid a marriage where both parties, and not
one only, knowingly intermarry without due notice {h).

Licences. — A marriage celebrated under a licence, in which one of
the parties is described by a name wholly different from his own, is not
therefore void. G. R. was taken into custody as the reputed father of
a child, of which a woman was pregnant, and married her by licence.
He gave his name as G. N. at the times of the apprehension and marriage,
and was named so in the licence, but had never gone by that name before ;
and the Court of Queen's Bench held this marriage valid {i).

MS. Bayley, J. (h) R. «. Rea, L. R. 1 C. C. R. 365 ; 41 L. J.

(d) Palmer's case, 1 Deao. Dig. Cr. L. M. C. 92. The Court did not say that there
147. Rose. Crim. Ev. (13th ed.) 276. would have been no Ofience if both parties

(e) R. V. Penson, 5 C. & P. 412, Gurney, had known of the false statement. See
B. See R. v. Orgill, 9 C. & P. 80. Holmes v. Simmons, L. R. 1 P. & M. 523.

(/) 2 Phillimore, 11. But see Wormald (i) Lane v. Goodwin, 4 Q.B. 361. But

V. Neale [1868], 19 L. T. (N. S.) 93. R. v. if a licence were obtained for one person

Drake, 1 Lew. 25, Parke, J. with the intention that it should be used for

(g) Ee Rutter [1907], 2 Ch. 592, and cases another, such a licence might not be valid,

there cited. Prowse v. Spurway [1877], Patteson, J. Ibid.

990 Offences as to Marriage. [book ix.

Where a marriage was solemnised by licence, in which the woman's
name was Margaret B. ; her baptismal name and that by which she
was commonly called being ' Margaret Lea B.' ; the licence was obtained
in the altered name by the man, who knowingly, and by direction of
the woman, suppressed the name of ' Lea,' and gave false places of residence
in order that the surrogate might not know who the woman was, and that
the intended marriage might be kept secret from her friends ; it was held
that the question was whether the woman was married without a ' licence
from a person or persons having authority to grant the same,' There was
no doubt the person who granted the licence had authority to grant it,
and it came therefore to the question whether this was a licence for the
woman. It was clear that an altered name might represent a person ;
therefore the name ' Margaret B.' might represent her, and as the licence
was obtained for her and by her direction from a person who had authority
to grant it the marriage was not void {ii).

Publication of Banns. — The Marriage Acts do not specify what must be
observed in the pubhcation of banns, or that the banns shall be published
in the true names of the parties ; but it must be understood as the clear in-
tention of the legislature that the banns shall be published in the true names,
because it requires that notice in writing shall be delivered to the minister
of the true Christian names and surnames of the parties seven days before
the publication ; and, unless such notice be given, he is not obliged to
publish the banns. But a publication in the name which the party has
assumed, and by which he is known in the parish, appears to be sufficient,
and would, indeed, be the proper pubhcation where the party is not
known by his real name. Thus, where a person, whose baptismal and
surname was A. L., was married by banns by the name of G. S., having
been known in the parish where he resided and was married by that name
only from his first coming into the parish till his marriage, which was
about three years, the marriage was held valid (j). And a marriage by
licence, not in the party's real name, but in the name which he had
assumed, because he had deserted, he being known by that name only in
the place where he lodged and was married, and where he had resided
sixteen weeks, was also held valid. Ellenborough, C.J., said, ' If this
name had been assumed for the purpose of fraud in order to enable the
party to contract marriage, and to conceal himself from the party to
whom he was about to be married, that would have been a fraud on the
Marriage Act and the rights of marriage, and the Court would not have
given efiect to any such corrupt purpose. But where a name has been
previously assumed, so as to have become the name which the party has
acquired by reputation, that is, within the meaning of the Marriage Act,
the party's true name ' [h).

In order to invalidate a marriage under sect. 22 of the Marriage Act,
1823 (4 Geo. IV. c, 76) (Z), it must be contracted with a knowledge by

(ii) Beavan v. M'Mahon, 30 L. J. names were completely misdescribed,

Mat. 61 : 1 Sw. & Tr. 230. whether from aooident or design : R. v.

(j) R. V. BilUnghurst, 3 M. & S. 250. Tibshelf, 1 B. & Ad. 190, but if there were

(k) R. V. Burton-upon-Trent, 3 M. & S. only a partial variation of name, as the

537. alteration of a letter or letters, or the

(I) Under Lord Hardwioke's Act, 26 Geo. addition or suppression of one Christian

II. 0. 33 (rep.), the marriage was void if the name, or the names had been such as the

CHAP. xiL] Of Bigamy. 991

hoth parties that no due publication of the banns has taken place. Where,
therefore, J. C. told S. S. that he would see the banns properly pubKshed,
and she took no steps in the matter, and he told her that they had been
pubUshed, but procured the banns to be published in the name of A. W.,
which name she had never borne ; and in performing the service the
clergyman applied to her the name of A. till which time she believed she
was about to be married by her own name, and she did not know, until
after the marriage, that the banns had been published in a wrong name ;
it was held that the marriage was vaUd (m). But where both the man
and the woman were aware that the banns had been published in a manner
to conceal the identity of one of them, it was held that the marriage was
void {n).

E. C. T., a minor, of the age of seventeen years, and M. A. A., a widow,
of the age of thirty-five years, were married in 1833 by banns, which were
published in the names of E. T., bachelor, and M. A. A., spinster ; the
entry in the register was in the same names and descriptions, and was
signed E. T. The marriage was clandestine and without the knowledge
or consent of the parents of T., who was baptised by the names of E. C. T.,
and though known to some persons by the name of C. T. or T. only, was
never known by the name of E. T. It was admitted that the woman
was cognizant of the fraud and intended it ; and it was held that as the
entry in the register was, E. T. and M. A. A. were married by banns, it
was impossible for him not to have known of the publication of the banns ;
and the signature of only one of his Christian names showed that he must
have known that the banns had been published in that name only ; and,
therefore, he, with the woman, knowingly and wilfully intermarried
without due publication of banns (o).

One W. was baptised and had always been known by the name of
Bower W., and never by the name of John W. His banns were
pubUshed in the name of John W. ; after the first publication the wife
told W. that the name John W. was wrong. He said it was one of his
names, though he had never been called by it ; she asked him why he
used the name John ? He said it was for fear any of his relations should
know of his marrying her. She wished him to use the name of Bower ;
he said he should be disinherited if he did ; she asked him if the marriage
would be legal under the name of John ; he said it would. It was a long
time before she would consent to being married to him in the name of
John. She did so because he said if she loved him she would marry him

parties had uaed, and been known by, And see Gompertz v. Keusit, 41 L. J. Ch.

at one time, and not at another ; in ' 382. R. v. Kay, 16 Cox, 292.

such oaaeg the publication might or might (n) Wiltshire v. Wiltshire, 3 Hagg. (Eccl.

not be void ; the supposed misdescription Rep. ) 332.

might be explained, and it became a (o) Tongue v. Tongue, 1 Moore, P. C.

most important part of the inquiry, 90. There was also evidence that it was

whether it was consistent with honesty the regular course to make the parties

of purpose, or arose from a fraudulent examine the entry in the banns book before

intention. R. v. Tibshelf, 1 B. & Ad. a marriage, and see that their names and

Tenterden, C.J. See Sullivan v. Sulhvan, descriptions were right, and the witness

2 Hagg. Consist. Rep. 238, 254. Frank- added that she should not have been

land V. Nicholson, 3 M. & S. 261. Pougett present at the marriage as a witness,

V. Tomkins, 3 M. & S. 263. Mather v. unless the banns had been regularly

Ney, 3 M. & S. 265. published.
(m) R. V. Wroxton, 4 B. & Ad. 640.

992 Offences as to Marriage. [book ix.

in that name, and would trust to him afterwards. Ultimately,
they were married in the names of M. M. and John W. CressweU, J., held
that there was not a due publication of banns, as W. was described in them
as John W., and both parties were aware of this misdescription when the
marriage was solemnised, and therefore the marriage was invaUd {f).

On the trial of an ejectment, a marriage was said to have taken place
in 1784, at a private house under a special licence from the Archbishop
of Canterbury. The plaintiff's counsel offered in evidence an affidavit
made for the purpose of obtaining a special licence to be married at a
private house, and a fiat signed by the Archbishop, directing a licence
to be made out, as prayed, for a marriage between the parties ; both
which documents were produced from the Office of Faculties, the proper
ecclesiastical office. No search had been made for the original licence,
and there was proof that such licences were not kept in any regular
custody, but were generally handed over to the officiating clerg)nnan and
not taken back from him. A copy of the register of the parish of St.
Pancras, which stated the marriage to have been at a private house, by
special licence, and professed to be signed by the parties, was also offered
in evidence. Objection was taken to the fiat as being secondary evidence
of the contents of the licence, for which no search had been made ; but
the evidence was admitted ; but the Court held that it was properly
received, as the fiat was an act done in the course of official duty, shewing
that two persons bearing the names of the lessor of the plaintiff's parents
were at that time engaged in taking measures for contracting a marriage ;
and that it might properly be taken into consideration by the jury as
confirming the evidence of their union, which arose from cohabitation
and reception. The affidavit and register were proofs of the same
general fact {q).

Registration is not essential to the validity of a marriage in England (r).
It is usual but not essential to prove the first marriage by a certified
copy of the entry of the marriage in the register (s) : or the original
register may be produced from the proper custody {t). If the register
or a certified copy of the entry is not available viva voce evidence of
persons present at the ceremony will suffice if they can describe it
sufficiently to shew that it was in a lawful form.

Identity.- — The identity of the parties to the first marriage must also be
proved (m). It is not necessary for this purpose to call any of the witnesses

(p) Midgley v. Wood, 30 L. J. Mat. 57. the ceremony. It appeared that at the

But see Re. Rutter [1907], 2 Ch. 592. first marriage the prisoner went by the

(q) Doe d. Egremont v. Grazebrook, name of AlUaon, at the second by the name

4 Q.B. 406. In the argument it is said of Wilkinson. Chambr^, J. , doubted whether

that ' the performance of a ceremony was the evidence was sufficient without proof

proved ' ; ' but the ceremony was shewn of the banns, but the other judges held that

to have been performed in a private house.' it was. Cf. R. v. Manwaring, 26 L. J. M. C.

' The same parties went through the cere- 10 : D. ■«. B. 132.

mony,'whieh, at any rate, was professedly a (s) Doe v. Fowler, 14 Q.B. 700. The

marriage.' See Doe d. France v. Andrews, register itself is rarely produced. As to

15 Q.B. 756, as to the entry in the register. proof of entries in foreign registers, see

(r) R. V. Allison, MS. Bayley, J., and Lyell v. Kennedy [1889], 14 App. Cas. 437,

B. & R. 109. The prisoner was indicted 449.

for marrying Ann Epton, while Jane, his (t) See R. v. Millis, 10 CI. & F. 534.

ormerwife was living. . . . Each marriage [u) See R. v. Simpson, 15 Cox, 423.

was proved by a witness present at R. v. Manwaring, 26 L. J. M. 0. 10.

CHAP, xii] Of Bigamy. 993

who are by law required to sign the register {v), but is sufficient to give any
evidence as to the identity of the parties, e.g. by having their handwriting
to the register or that bellringers were paid by them for the wedding or
the Hke.

In E. ■;;. Tolson (w), on an indictment for bigamy a photograph
which had been taken from the prisoner, and which she had said was
that of her husband, was allowed to be shewn to a witness present at
the first marriage, and also to another witness who had known the man
of whom the photograph was a likeness, in order to prove his identity
with the person mentioned in the marriage certificate. But this form
of identification is unreliable unless amply corroborated {x).

Evidence. — Where the entry of a marriage in England is in a non-
parochial register or record it can be proved on an indictment for bigamy
or other criminal case only by production from Somerset House of the
original register or record {y).

The marriage registers are kept in duplicate and the entry of the
marriage is made therein immediately after its solemnisation, and is
signed by the parties and by two witnesses and by the officiating clergy-
man {z) or minister or authorised person (a) or registrar if he officiates or
attends (&), or in the case of marriages abroad the marriage officer (c).

Where the entry is in a register kept under the provisions of the
Registration Acts : —

{a) a certified copy of the entry purporting to be sealed or stamped
with the seal of the general register office is to be received as evidence of
the marriage to which the entry relates without any further or other proof
of such entry {d) : or

(6) an examined copy or extract of the entry signed and certified as
a true copy or extract by the officer to whose custody the original is
entrusted is admissible in evidence (e) : but

Although marriages must be solemnised in the presence of two or more
credible witnesses (gr) it is not essential to call all or any of them {gg).

By the Marriage Act, 1823 (4 Geo. IV. c. 76), s. 26, ' After the
solemnization of any marriage under a publication of banns, it shall not
be necessary in support of such marriage to give any proof of the
actual dwelling of the parties in the respective parishes or chapelries
wherein the banns of matrimony were published ; or, where the
marriage is by licence, it shall not be necessary to give any proof that

(v) 1 East P. C. 472. Bull (N. P.) 27. section extends to registers of marriages

See Morris v. Miller, 4 Burr. 2057. Birt u. solemnized under the Marriage Act, 1836

Barlow, 1 Doug. 162. (5 & 6 Will. IV. o. 85), s. 44.

(w) 4 F. & P. 103. (e) 14 & 15 Vict. c. 99, s. 51. See R. v.

(x) See Frith v. Frith [1896], Prob. 74. Weaver, 1873, L. R. 2 C. C. R. 85. Re

(S^) 3 & 4 Vict. u. 92, s. 17 ; 21 & 22 Vict. Goodrich [1904], Rob. 138.

c. 25, s. 3. See post. Vol. ii. p. 2143. (f) See Nokes v. Milward [1824], 2 Add.

(z) 6 & 7 Will. IV. 0. 86, s. 31. Eccl. 320.

(a) 6 & 7 Will. IV. 0. 85, s. 23 ; 61 & 62 (g) 4 Geo. IV. c. 76, s. 28 (C!hurch of

Vict. c. 58, s. 7. England). 6 & 7 Will. IV. c. 85, ss. 20, 21

(6) 6 & 7 Will. IV. c. 85, s. 23. (civil or non-anglioan).

(ci) 6 & 7 Will. IV. 0. 86, s. 38. This

VOL. I. 3 S

994 Offences as to Marriage. [book ix.

the usual place of abode of one of the parties, for the space of fifteen
days as aforesaid, was in the parish or chapelry where the marriage
was solemnized ; nor shall any evidence in either of the said cases be
received to prove the contrary, in any suit touching the validity of such
marriage ' {Ji).

By the Marriage and Eegistration Act, 1856 (19 & 20 Vict. c. 119),
sect. 17, ' After any marriage shaU have been solemnized, under the
authority of any of the said recited Acts {i), or of this Act, it shall not
be necessary in support of such marriage to give any proof of the actual
dwelling or of the period of dwelling of either of the parties previous
to the marriage within the district stated in any notice of marriage to be
that of his or her residence, or of the consent to any marriage having been
given by any person whose consent thereto is required by law, or that
the registered building in which any marriage may have been solemnized
had been certified according to law as a place of religious worship (/) or
that such building was the usual place of worship of either of the parties,
nor shall any evidence be given to prove the contrary in any suit or legal
proceedings touching the vahdity of such marriage ; and all marriages
which heretofore have been or which hereafter may be had or solemnized
under the authority of any of the. said recited Acts or of this Act, in any
building or place of worship which has been registered pursuant to the
provisions of the Marriage Act, 1836 (k), but which may not have been
certified as required by law, shall be as valid in aU respects as if such
place of worship had been so certified ' (?).

By sect. 23, ' Every marriage solemnized under any of the said
recited Acts or of this Act shall be good and cognizable in like manner as
marriages before the passing of the first-recited Act (m) according to
the rites of the Church of England.'

Capacity.— The Marriage Acts, 1823 (4 Geo. IV. c. 76) and 1836
(6 & 7 Will. IV. c. 85), apply only to the mode of celebrating marriage
and do not deal with capacity to marry (w).

The capacity of the parties to marry depends in the main on the law
of their domicile at the date of the marriage (o). According to English law
the consents of parents and guardians (oo) are part of the form of marriage,
and are not regarded as limiting the capacity to marry (p). Consequently

(h) Upon an enactment nearly similar, facie presumption that the chapel was

it was determined, in a prosecution for registered for the celebration of marriages,

bigamy, where the first marriage was (k) 6 & 7 Will. IV. o. 85, s. 18. See also

proved to have been by banns, that it was 7 Will. IV. and 1 Vict. c. 22, o. 35; 18 & 19

no objection that the parties did not reside Vict. c. 81.

in the parish where the banns were pub- (I) By sect. 20, nothing in the Act is to

lished and the marriage was celebrated. alter the provisions of the existing Acts,

The provision of the statute was considered except when they are at variance with this

as an express answer to the objection ; Act.

and it appears not to have been adverted to (m) The Marriage Act, 1836 (6 & 7

when the point was received for the opinion Will. IV. c. 85), passed Aug. 17, 1836.

of the judges. R. v. Hind, K. & R. 253. («) Re de Wilton [1900], 2 Ch. 481.'

(i) i.e. the Marriage Acts of 1836 (6 & 7 (o) Be Bozzelli [19021 1 Ch. 751 Oeden

Will. IV. 0. 85) ; 1837 (7 Will. IV. and 1 u. Ogden [1908], P. 46, 65.

Vict. c. 22) ; and 1840 (3 & 4 Vict. o. 72). (oo) Required by 4 Geo. IV. o 76 ss 16

0) In R. V. Cradock [1863], 3 F. & F. 17; 6 & 7 Will. IV. c. 85, s. 10; 55 & 56

837. Proof of marriage in a chapel in the Vict. c. 23, s. 4.

presence of the registrar of the district and (p) False statements as to having ob-

two witnesses was held to raise a prima tained such consents are punishable (fostt,

CHAP. XII.J Of Bigamy. 995

a marriage of foreigners in England without the consents required by
their national law or the law of their domicile is regarded as valid (9).

Prohibitions under foreign laws as to the marriage of persons under
religious vows or of negroes appear not to aflect the capacity of such
persons to marry in England (r). But in the case of marriage under a
foreign law it would seem to be necessary to prove any consents required
by that law to establish the validity in point of form of the marriage.

Nonage. — By the law of England and Ireland males are capable of
marrying at fourteen and females at twelve (s). Between these ages and
twenty-one, persons of either sex may marry with the consent of parents
or guardians if they have any {t).

Insanity. — Insanity in either party at the date of the marriage renders
it absolutely void if the party was then a lunatic so found by com-
mission (m), but voidable only, if the party had not then been found a
lunatic, but was at the date- of the marriage so unsound of mind as to
be incapable of understanding and consenting (v). In the case of
marriage the validity depends on the sanity of the party at the date of
the ceremony and not whether the same party knows of the insanity of
the other party {iv).

Impotence. — Impotence of either party at the time of celebration
makes the marriage voidable, but not void ah initio {x).

Impediments. — The impediment to marriage between persons who are
capable of marrjdng which are recognised by Enghsh law are : —

(i.) the existence of a valid subsisting monogamous marriage of
either party. {Vide ante, p. 979).

(ii. ) consanguinity or affinity between the parties within certain degrees.

Eor persons domiciled in England at the date of the marriage,
wherever it is celebrated («/) these degrees are determined by the
Table of Consanguinity and AfGlnity (z) published in 1563 as an

p. 1012), but do not invalidate the marriage. (u) Under the great seal of Great Britain

B. V. Birmingham, 8 B. & C. 29. R. v. and Ireland, or whose person or estate has

Clark, 2 Cox, 183. The decisions to the been committed to the care of trustees. 51

contrary under Lord Hardwicke's Act (26 Geo. III. c. 37, which re-enaots and extends

Geo. II. 0. 33) have ceased to be of force to Ireland 15 Geo. II. u. 20 (rep. 1873,

since 1823 (4 Geo. IV. c. 76, ss. 16, 22, 23 ; 36 & 37 Vict. ^. 91). The incapacity

19 & 20 Vict. 0. 119, s. 17). As to the continues till the party is declared of sound

effect of belief that want of consent renders mind by the judge in lunacy (53 & 54 Vict,

such marriage invalid, see R. v. Bayley, 1 c. 5), or the majority of the trustees.

Cr. App. B. 86. (v) See Durham (Eari) v. Durham

(q) Ogden v. Ogden [1908], P. 46. (Countess), 10 P. D. 80. This rule allows

(r) Ibid. p. 66. Of. Scott v. Att.-Gen., for lucid intervals.

11 P. D. 128. (w) See Wood-Benton on Lunacy, 17-

(s) Co. Litt. 79. It is said that where 29.

the child is over seven the marriage is [x) B. alias A. v. B [1891], 27 L. B. Ir.

voidable only and not absolutely void. 587.

The canonists seem to have been prepared (y) Brook o. Brook [1861], 9 H. L. C.

in certain cases to hold that evidence of 193: 11 E. B. 703, a marriage under Danish

sexual capacity might be given as to persons law of an Englishman to his deceased wife's

under fourteen and that in such cases sister, both being domiciled in England.

' malitia supplet aetaf-em.' See Fraser, {z) Affinity is constituted through

Husband and Wife (2nd ed.) 51. Geary marriage, not by sexual intercourse. Wing

on Marriage. v. Taylor, 2 Sw. & Tr. 278. Consanguinity

(<) F«deposi,p. 1012, andc/. B. v. Bayley, exists even between persons who are not

nbi supra. In Scotland persons of an age to akin through lawful wedlock, Horner v.

marry need no consent of parent or Homer, 1 Hagg. (Consist.), at p. 352.

guardian. Eraser, 55.

3 s2

996 Offences as to Marriage. [book ix.

authoritative exposition of the Acts 28 Hen. VIII. c. 7, s. 7 ; 28 Hen.
VIII. c. 16, s. 2 ; 32 Hen. VIII. c. 38 (a). For persons domiciled
elsewhere the prohibited degrees depend on the law of the nationality
or the domicile of the parties (&).

By the Marriage Act, 1835 (5 & 6 Will. IV. c. 54), sect. 2, 'all marriages
celebrated after August 31, 1835, between persons within the prohibited
degrees of consanguinity or affinity shall be absolutely null and void to all
intents and purposes whatsoever' (c). Where, consequently, a marriage
takes place -within the prohibited degrees of consanguinity or affinity, as
such marriage is wholly void, a second marriage will not amount to the
crime of bigamy. Where, therefore, on an indictment for bigamy, it
appeared that the prisoner had married two sisters, one after the death-
of the other, and the latter marriage was alleged in the indictment as the
legal marriage, it was held that he was entitled to be acquitted, as that
marriage was null and void to all intents and purposes (d). The Act of
1835 extends to the illegitimate as well as the legitimate child of a late
wife's parents. Therefore a marriage -with the illegitimate sister of a
deceased wife was held void (e). So a marriage of a man with the
daughter of the illegitimate half-sister of his deceased wife is void (/).

The table of prohibited degrees was varied by 7 Edw. VII. c. 47, for
the purposes of marriage as a civil contract by legalising marriages
between a man and the sister of his deceased, but not of his divorced,
wife. The Act validates as ci-vil contracts in the United Kingdom
marriages already contracted with a deceased wife's sister solemnised in
the United Kingdom, or in a foreign state or British possession where
such marriage could lawfully be contracted (g).

On an indictment for bigamy, it appeared that the first marriage
professed to be under the pro-visions of the Marriage Act, 1836, and the
superintendent registrar produced the register returned to him by the
registrar, who proved that he was present at the marriage, that it was
registered, that the parties signed their names, and he witnessed it ; and
the superintendent registrar produced the register of the place where the
marriage was celebrated, and the certificate he issued was produced and
proved by him. A witness stated that he was present at the marriage,
and that notice of it was duly given to the superintendent registrar, but
the latter did not produce it, and said, if he had received it, he had left
it at home ; it was contended, on behalf of the prisoner, that it was

(a) The table extends to planted to this relationship by 7 Edw. VII. o. 47.

Colonies, subject to changes effected by (e) R. v. St. Giles in the Kelds, 11 Q.B.

local legislation. See Major v. Miller, 173. -Where a woman proved that she had

4 Australian C. L. R. 219, and cf. -Watts v. a sister seven years older than herself, and

Watts [1908], App. Cas. 573. that they were brought up together with

(6) As to Scots law see Soots Act, 1567, their parents, and that she always believed

0. 14. Traser {2nd ed.), 105, 134. As to that they were sisters, Erie, J., held this

Italy see Me Bozzelli [1902], 1 Ch. 751. was sufficient evidence to prove that they

voidable by sentence of an ecclesiastical proved that her sister married M.- in 1846,

Court during the lifetime of the parties. and died in 1848, and the witness married

A marriage de facto voidable for consan. M. in 1849, Erie, J., held that this shewed

guinity, but not avoided by decree, would the latter marriage to be void. R. v.

support an indictment for bigamy under Young, 5 Cox, 296.

1 Jao. I. c. 11 (rep.). (/) R. v. Brighton, 1 B, & 8. 447. This

{d) R V. Ghadwick, 11 Q.B. 173 : 17 L. case is not affected by 7 Edw. VII. c. 47.

J. M. C. 33. The law has been altered as {g) See ss. 1, 3 of the Act.

CHAP. xiL] Of Bigamy. 997

incumbent on the prosecution to shew that the first marriage was cele-
brated in the registered building specified in the notice and certificate;
to prove that due notice had been given to the superintendent registrar,
and that the certificate of the notice had been duly issued. But, on a
case reserved, all the judges present held the evidence sufiicient (h).

Upon an indictment for bigamy, which alleged that the prisoner
married E. G. in a Wesleyan chapel duly registered for solemnising
marriages (■»), and afterwards in her Kfetime married E. 0., a witness
proved that he was present at the first marriage at the Wesleyan chapel
in the presence of the registrar, and signed the register as a witness, and
that the parties lived together as man and wife for two or three years.
A witness proved that a certificate of this marriage was examined by him
with the register book, kept at the office of the superintendent registrar
of the district, and that it was correct, and that it was signed by the
superintendent registrar. This certificate contained a copy of the register
which the registrar certified to be correct. The witness also proved that
he examined another certificate with the register book at the office of
the superintendent registrar, and that it was correctly extracted, and
was signed by the superintendent registrar in his presence {j). The
witness also proved that another document was signed in his presence by
the superintendent registrar, and that he examined it with the register
at his office, and found it was correctly extracted (k). The reception of
these documents was objected to, on the ground that certificates were
not admissible to prove a marriage in a Wesleyan chapel, or that it was
a place in which a marriage eould be legally solemnised, or that, if
admissible, they must be authenticated by the official seal of the registrar,
and not under hand only. But the documents were admitted, and the
prisoner convicted ; and it was held that the conviction was right, upon
the ground that, independently of the two last-mentioned documents,
there was prima facie evidence that the chapel was duly registered, and
was therefore a place in which marriages might be legally solemnised.
The presence of the registrar at the marriage, the fact of the ceremony
taking place, and the entry in the registrar's book, aided, as they were,
by the presumption omnia rite esse acta, afforded prima facie evidence
that the chapel was a duly registered place, in which marriages might be
legally celebrated (1). So where on an indictment for bigamy the prisoner

{h) R. V. Hawes, 1 Den. 270. Where &c., Thos. Erskine Austin.'
the production of the original register of {k) This document was, ' Henry Man-
marriages cannot be enforced, a witness, waring and Eliza Goodman were married
who has seen the register, may prove the after notice, read at the Board of Guardians
handwriting of a party to a marriage therein of the Luton Union, without licence,
registered, although such register be not Thos. Erskine Austin, Superintendent
produced. Sayer v. Glossop, 2 Ex. 409. Registrar.'

(i) Under 5 & 6 Will. IV. c. 85, s. 18. (/) R. v. Manwaring, D. & B. 132 ; 26 L. J.

(j) This certificate was, ' I, the under- M. C. 10. Pollock, C.B., and Willes, J.,

signed, T. E. Austin, Superintendent Reg- thought that the certificate that the chapel

istrar of the district of Luton, &c., do here- had been duly registered was admissible and

by certify that the Wesleyan chapel, situate evidence of the fact. 6 & 7 Will. IV. cc. 85,

at Dunstable, in the county of Bedford, 86; 7 Will. IV. & 1 Vict. c. 22 ; 3 & 4 Vict,

was duly registered for the solemnization c. 92 ; 8 & 9 Vict. c. 113 ; 9 & 10 Vict. c.

of marriages, pursuant to the Act 6 & 7 119; and 1 4 & 15 Vict. c. 99, were referred

Will. IV. c. 85, on the twenty-eighth day to on the trial. Willes, J., said: ' It is a

of November, 1 845. Given under my hand, mistake to suppose that the provisions of

998 Offences as to Marriage. [book ix.

was shewn to have been secondly married at a Wesleyan chapel
not registered under 15 & 16 Vict. c. 36, and this marriage was proved
by the registrar, who produced the certificate ; it was objected that
there was no proof of the second marriage, or that it was invalid,
having taken place in a chapel ; but Wightman, J., overruled the
objections (m).

In Sichel v. Lambert (n), in an action for goods sold there was a plea
of coverture, and the defendant stated that she was married to J. L. at
a Eoman Catholic chapel ; that she and L. were both Roman Catholics,
and were married by a priest in- the way in which Eoman Catholic mar-
riages are ordinarily celebrated, and that they lived together for some
years, and she produced a certificate of the marriage from the priest who
performed the ceremony, and a certificate shewing that the civil contract
of marriage had been performed before the French Consul ; but there was
no proof that the person who performed the ceremony was a priest, or
that the chapel was a place licensed for marriages, or that the registrar
was present at the time. The Court of Common Pleas held that it might
be presumed that the chapel was licensed and the registrar present as
well because sect. 39 of the Marriage Act, 1836, declares any person who
wilfully solemnises a marriage in any other place than a registered building
or in the absence of the registrar, guilty of felony, as because the ordinary
rule omnia prcesumuntur rite esse acta ought to prevail in such a case. In
E. V. Cresswell (o), where a marriage was solemnised in a building in a
parish situate a few yards from the parish church, at a time when the
parish church was disused in consequence of its undergoing repairs, and
after divine service had been several times performed in such building,
it was presumed in favour of the marriage to have been duly licensed,
although no proof was given of a licence by the bishop. Coleridge, C.J.,
said : ' We are of opinion that the marriage service having been performed
in the place where divine service was several times performed, the rule
" omnia prcesumuntur rite acta " applies, and that we must assume that
the place was properly licensed, and that the clergyman performing the
service was not guilty of the grave offence of marrying persons in an
unlicensed place. The facts of the marriage and other church services
being performed there by a clergyman are abundant evidence from which
the Court and a jury might assume that the place was properly licensed
for the celebration of marriages ' (p).

In R. V. Cradook (q), proof of marriage in a chapel in the presence
of the registrar of the district and two witnesses was held to raise a
prima facie presumption that the chapel was registered for the
celebration of marriages.

Quakers and Jews. — The marriages between Jews, and Quakers or
ex-Quakers may be celebrated according to the practice and usages of

14 & 15 Vict. 0. 99, s. 14, are anything more 13 Cox, 126.

than cumulative, or that they give a rule {p) As to the registration of Roman

and the only rule of evidence.' See R. v. Catholic chapels, see 6 & 7 Will. IV. o. 85,

Cradock, 3 P. & F. 837, infra. s. 18 ; 7 Will. IV. & 1 Vict. o. 22, s. 35, and

(m) R. V. Tilson, 1 F. & P. 54. 18 & 19 Vict. c. 81.

(«) 15 C. B. (N. S.) 781. (q) [1863] 3 F. & F. 837.

(o) 1 Q.B.r). 446; 45 L. J. M. C. 77;

CHAP. XII.] Of Bigamy. 999

the Society of Friends (r) or tlie Jewish religion (s) on production of a
certificate or licence of the civil registrar and without his attendance {t).
The place where the marriage is celebrated need not be in a district in
which the parties or either of them dwell (m). The statutes do not specify
the number of witnesses necessary at these marriages but require registra-
tion of the marriage and signature of the register by two witnesses and the
secretary of the synagogue or registering officer of the Quakers {v).

Such marriages are ordinarily proved by the production of a certificate,
i.e. certified copy of the register, and by identification of the parties (w).
But in the case of a marriage by Jewish rules it is said to be necessary
also to prove (1) a contract of marriage (x) ; (2) that the witnesses to the
marriage were not blood relations of the parties {y).

Marriages may be validly celebrated by Quakers or Jews before the
civil registrar and in accordance with the statutory conditions required
in such case (z), and it would seem that marriages by Jewish rules of Jews
domiciled in England but within the English prohibited degrees are not
valid in England {a).

Marriages by English Forms Outside the United Kingdom. — ' All
marriages solemnized within the British lines by any chaplain or officer or
other person officiating under the orders of the commanding officer of a
British army serving abroad shall be as valid in law as if the same
had been solemnized within the United Kingdom with a due observance
of all forms required by law ' (6).

Where a soldier on service with the British army in St. Domingo, in
1796, went with a woman to a chapel in the town, and the ceremony was
there performed by a person appearing and officiating as a priest ; the
service being in French, but interpreted into English by a person who
officiated as clerk, and understood at the time by the woman to be the
marriage service of the Church of England. This was held sufficient
evidence, after eleven years' cohabitation, that the marriage was properly
celebrated, although the woman stated that she did not know that the

(r) 6 & 7 Will. IV. 0. 85, ss. 2, 16 ; 19 & marriage in the Society of Friends.
20 Viet. c. 119, ss. 20, 21 ; 23 & 24 Vict. (x) E. v. Althausen, 17 Cox, 630. R.

u. 18 ; 35 & 36 Vict. c. 10. v. Nasillski, 61 J. P. 520. These decisions

(s) See 4 Geo. IV. o. 76, s. 31 ; 6 & 7 are of doubtful authority. In Horn o.

Will. IV. u. 85, ss. 2, 16; 19 & 20 Vict. u. 119, Noel, 1 Camp. 61, it was contended that

S3. 20, 21. And see Ruding v. Smith, 1 St. the ceremony in the synagogue was merely

Tr. (N. S. ) 1053, 1064, l065 : 2 Hagg. a ratification of a previous written oon-

(Consist.) 371. tract, and that as such contract was

(t) It is not required by the Marriage essential to the validity of the marriage,

Acts, 1836, 1837, or 1840, and the Marriage it must be put in and proved, and this was

Act, 1898, does not apply to Quaker or done.
Jewish marriages (61 & 62 Vict. o. 58, s. 13). (y) Nathan v. Woolf [1899], 15 Times

(m) 3 & 4 Vict. c. 72, h. 5. L. R. 250.

(u) 6 & 7 Will. IV. c. 86, ss. 31, 40 ; {2) Vide supra.

19 & 20 Vict. 0. 119, s. 22. (a) Be De Wilton [1900], 2 Ch. 481.

(w) In Deane v. Thomas, M. & M. 361, (6) 55 & 56 Viet. u. 23, s. 22. The

a marriage between Quakers was proved section is declaratory of pre-existing law.

by producing the register of the meeting As to registration of marriages outside the

house, signed by the parties and several U. K. of officers and soldiers of the King's

subscribing witnesses, and calling one of land forces and their families, see 42 &, 43

the witnesses who proved the form of Vict. 0. 8. As to publishing on the King's

marriage by declaration of the parties ships at sea, the banns of an officer, seaman,

at a monthly meeting of the sect to bo or marine on the books of the ship, see 8

that usually considered as necessary to Edw. VII. c. 26.

1000 Offences as to Marriage. [book ix.

person officiating was a priest. Ellenborougli, C.J., in delivering his
opinion, considered the case, first, as a marriage celebrated in a place
where the law of England prevailed (supposing, in the absence of any
evidence to the contrary, that the law of England, ecclesiastical and civil,
was recognised by subjects of England in a place occupied by the King's
troops, who would impliedly carry that law with them) and held that it
would be a good marriage by that law : for it would have been a good
marriage in this country before the Marriage Act, and consequently
would be so now in a foreign colony, to which that Act does not extend.
In the second place, he considered it upon the supposition that the law
of England had not been carried to St. Domingo by the King's forces,
nor was obligatory upon them in this particular ; and held that the facts
stated would be evidence of a good marriage according to the laws of
that country, whatever it might be ; and that upon such facts every
presumption was to be made in favour of the validity of the marriage (c).

On the authority of E. «. Millis (d) it was held that a marriage solem-
nised at the consulate office at Beyrout in Syria, according to the rites
of the Church of England, between two British subjects who were mem-
bers of that church, by an American missionary, who was not in holy
orders, was void (dd).

E. V. Millis (d) does not decide that marriages of British subjects in
the colonies, or on board ship or elsewhere, where a clergyman cannot be
obtained, are invalid (e). This was expressly declared in Beamish v.
Beamish (/), and in a case in India where no clergyman could be obtained,
it was held that E. v. Millis did not apply (</).

The Foreign Marriage Act, 1892 (55 & 56 Vict. c. 23) (h), which deals
with the marriage of British subjects outside the United Kingdom by
British marriage officers, provides by sect. 23 that ' nothing in this Act
shall confirm or impair or in anywise affect the vahdity in law of any
marriage solemnized beyond the seas otherwise than as herein provided,
and the Act shall not extend to the marriage of any of the Eoyal family.'

Sect. 26 of this Act, after repealing former Acts as to marriages
abroad (i), provides, subsect. 2, that, ' Every marriage in fact solemnized
and registered by or before a British consul or other marriage officer in
intended pursuance of any Act hereby repealed shall, notwithstanding

(c) R. V. Brampton, 10 East. 282. As to states in alliance with His Majesty. The
Ceylon law see Aronegary v. Vaigalie, 6 Acts contain special provisions as to
App. Cas. 364. native Christians.

(d) [1843] 10 CI. & F. 534, 8 E. R. 844. {h) This Act repealed, by sect. 26, the
(dd) Catherwood v. Caslon [1844], 13 M. following enactments : — 4 Geo. IV. c. 91 ;

& W. 261. See R. v. Manwaring, 26 L. J. 12 & 13 Vict. c. 68 ; 31 & 32 Vict. c. 61 ;
M. C. 10; D. & B. 132. 33 & 34 Vict. o. 14, s. 11 ; 53 & 54 Vict.

(e) As to validation of certain marriages o. 47 ; 54 & 55 Vict. c. 74.

celebrated before July 21, 1879, on public (i) The following enactments legalise cer-

ships on a foreign station, see 42 & 43 tain marriages outside the U.K. : — 58 Geo.

Vict. c. 29, s. 2. III. c. 84 (India). 5 Geo. IV. c. 68 (New-

( / ) 9 H. L. C. 274 ; 11 E. R. 735. foundland). 17 & 18 Vict. <,. 88 (Mexico).

ig) Maclean v. Cristall, Perry, Oriental 21 & 22 Vict. c. 46 (Moscow, Tahiti, and

Cas. 75. The marriage of Christians in Ningpo). 22 & 23 Vict. c. 64 (Lisbon).

India is regulated by Indian Acts No. XV. 23 & 24 Vict. o. 86, and 27 & 28 Vict. c. 77

of 1872, and No. II. of 1891. The Acts (Ionian Islands). 30 & 31 Vict. c. 93

extend to Christian subjects of His Majesty (Morro Velho, Brazil). 30 & 31 Vict. c. 2

{i.e. professing the Christian religion), in (Odessa). 31 & 32 Vict. c. 61 (China). And

the territories of native princes, and see note (v), ante, p. 985.

CHAP. xiL] Of Bigamy. 1001

such repeal or any defect in the authority of the consul or the solemniza-
tion of the marriage elsewhere than at the consulate, be as valid as if
the said Act had not been repealed, and the marriage had been
solemnized at the consulate by or before a duly authorised consul ;

' Provided that this enactment shall not render vahd any marriage
declared invalid before the passing of this Act by any competent Court,
or render valid any marriage either of the parties to which has before
the passing of this Act, lawfully intermarried with any other person.'

Colonial Marriages. — By 28 & 29 Vict. c. 64, after reciting that laws
' have from time to time been made by the legislature of divers of her
Majesty's possessions abroad for the purpose of establishing the validity
of certain marriages previously contracted therein, but doubts are
entertained whether such laws are in all respects effectual for the afore-
said purpose beyond the limits of such possessions,' it is enacted as
follows : — -

Sect. 1. ' Every law made or to be made by the legislature of any such
possession as aforesaid, for the purpose of establishing the validity of
any marriage or marriages contracted in such possession, shall have and
be deemed to have had from the date of the making of such law, the same
force and effect, for the purpose aforesaid, within all parts of her Majesty's
dominions, as such law may have had, or may hereafter have, within the
possession for which the same was made : Provided that nothing in this
law contained shall give any effect or validity to any marriage, unless at
the time of such marriage both of the parties thereto were, according to
the law of England (m), competent to contract the same.'

Sect. 2. ' In this Act the word " legislature " shall include any
authority competent to make laws for any of her Majesty's possessions
abroad, except the Parliament of the United Kingdom and her Majesty
in Council' (see also 6 Edw. VII. c. 30: 7 Edw. VII. c. 47).

Marriages under other Laws than English. — Where the first marriage
was contracted outside England and not under English law, evidence
must be given to prove that the marriage was in form and substance
valid by the law of the country where it was contracted, and where the
second marriage was contracted outside England it is necessary to shew
that it was in point of fact valid by the law under which it was celebrated.
The laws of other countries being matters of fact must be proved by
evidence of experts conversant with that law {j) periti virtute officii or
virtute professionis, such as a lawyer practising in the courts of the country
whose law is in question, or a person having from professional research or
experience a sufficient qualification (k).

This rule as to proof of non-English law of marriage apphes to Scots,
Irish, and colonial law as well as to the law of foreign states, and these
laws being matters of fact it is impossible here to deal with them in detail.

Scotland. — The law of Scotland recognises irregular marriages as valid
where satisfied that the parties meant to contract marriage (I).

(ii) See 6 Edw. VII. c. 30. and post, Vol. ii. p. 2136.

(j) Sussex Peerage Claim, 11 a. & F. (k) Wilson w. Wilson [1903], P. 157.

85 (which overrules R. v. Dent, 1 C. & K. (I) De Thoren v. Att.-GTen., 1 App. Cas.

97). R. v. Povey, Dears. 32. See also R. 686. Dysart Peerage Claim, 6 App. Caa.

V. Griffin, 14 Cox, 308 : 4 L. R. Ir. 497 ; 489,

1002 Offences as to Marriage. [book ix.

By 19 & 20 Vict. c. 96, s. 1, ' After the 31st of December, 1856, no
irregular marriage contracted in Scotland by declaration, acknowledg-
ment, or ceremony, shall be valid, unless one of the parties had at the
date thereof his or her usual place of residence there, or had lived in
Scotland for twenty-one days next preceding such marriage ; any law,
custom, or usage to the contrary notwithstanding' (m).

Where it appeared that the second marriage took place at Gretna
Green, and upon the whole evidence the assent of the second wife was
not ' distinctly and clearly proved,' and, though the parties had lived
together afterwards, the evidence tended rather to shew that they were
living togetibier in a state of concubinage, inasmuch as the prisoner still
continued to address her by her maiden name, Alderson, B., directed the
jury to find the prisoner not guilty (n). And where on an indictment for
bigamy, to prove the second marriage in Scotland, a witness stated that she
(being the sister of the second wife) was present at a ceremony performed
by a minister of a congregation, but whether of the Kirk she did not know,
in her private house in Edinburgh ; that she herself was married in the
same way, and that parties were always married in Scotland in private
houses ; that the prisoner and her sister lived together in her house as
man and wife for a few days after the ceremony ; and the jury found the
prisoner guilty ; upon the question being reserved whether the evidence
was sufficient to justify the verdict, it was held that, even supposing that
the witness had been a competent witness for such a matter, her evidence
did not prove a marriage in fact (o).

Ireland. — The rules as to prohibited degrees of consanguinity and
affinity are the same in Ireland as in England (p), and marriages within
these degrees are absolutely void (q) except in cases within 7 Bdw. VII.
c. 47 (r).

It would seem that the celebration of marriages between two
Protestants by a Eoman Catholic priest is still illegal and punishable (s).

In Ireland at common law a marriage was not valid unless a clergyman
in holy orders of the united churches of England and Ireland was present
at the marriage ceremony. Where, therefore, A., a member of the
Established Church in Ireland, went, in 1829, accompanied by B., a
Presbyterian, to the house of C, a regularly placed minister of the
Presbyterians of the parish where C. resided, and there entered into a

(m) Lawford v. Davis, 4 P. D. 61. This and continued after his death, continues to

Act put an end to Gretna Green marriages bea,r an illicit character, unless there be

between persons, minors and others, a clear change in its character after the

domiciled in England. These marriages, death of the husband is known to the

after certain doubts, had been recognised parties.

as vaUd in England. Crompton v. Bear- (p) By the Irish Statutes, 28 Hen. VIII.

croft. Bull. (N. P.) 113. Phillips v. Hunter, c. 2 ; 33 Hen. VIII. c. 6 ; 2 EUz. c. 1, s. 2.

2 H. Bl. 412, Eyre, C.J. Ilderton v. (q) By Lord Lyndhuist's Act, 5 & 6 Will.

Ilderton, 2 H. Bl. 145. And see Ogden IV. o. ."54, ante, p. 996.

V. Ogden [1908], P. 46. (»•) As to pre-contracts without oonsum-

(n) R. V. Graham, 2 Lew. 97. In the mation, see 12 Geo. I. c. 3, s. 3 (Ir.).

same case the same learned judge refused (s) See 12 Geo. I. c. 3, s. 1. R. v.

to admit the certificate as evidence of the Taggart, 2 Cox, 50. This Act is repealed

marriage. to an extent difF.oult to undeistand by

(o) R. V. Povey, Dears. 32 : 22 L. J. M. 3 & 4 Will. IV. c. 102, o. I, and is modifled

C. 19. In Lapsley v. Grierson, 1 H. L. C. as to mixed marriages by 33 & 34 Vict.

498, it was held that illicit cohabitation in c. 110, ss. 32, 33, 38-40.
Scotland begun in the lifetime of a husband,

CHAP, xii.] Of Bigamy, 1003

present contract of marriage with the said B., the minister performing a
religious ceremony between them, according to the rites of the Presby-
terian church, and A. and B. lived together as man and wife for some
time afterwards ; but A., afterwards during B.'s life, married another
person in a parish church in England ; it was held, on an indictment for
bigamy (under 10 Geo. IV. c. 34 (rep.) ), that the first contract thus
entered into was not sufficient to support the indictment (/!).

A woman was married in 1799, at her father's house, in Ireland, in the
presence of the friends of both families, by a clergyman of the Church of
England, who had been curate of the parish for eighteen years. The
parish church was standing, but persons of respectability were usually
married at their own houses ; the parties lived together for several years
following as man and wife. Upon objection to the validity of this
marriage, Best, C.J., said : ' I know of no law which says that celebration
in a church is essential to the validity of a marriage in Ireland. The
English Marriage Act does not apply, and I am aware of no Irish law
which takes marriages performed in that country out of the rules which pre-
vailed in this before the passing of that Act.' Dalrjnuple v. Dalrymple (m)
has placed it beyond a doubt that a marriage so celebrated as this has been
would have been held vaUd in this country before the existence of that
statute {v). Where in support of a plea of coverture it was proved that
Mrs. Q., in 1842, married Mr. Q. at the house of the Eev. F. M., and
Mr. M.'s widow produced his letters of orders shewing that he had been
ordained deacon and priest by bishops of the Established Church, and
also proved that when persons were married at their house, her husband
always made an entry in a register book, which she produced, and also
gave a certificate of the marriage to the persons married ; and the register
contained an entry of the marriage of Mr. and Mrs. Q., and Mrs. Q. proved
that she married Mr. Q. as before mentioned, and produced the certificate
given to her by Mr. M. ; Parke, B., held that the certificate was admissible
as a part of the transaction ; but not the register ; and that the marriage
was valid ; for although it was not celebrated in a church, it was a valid
marriage at common law {lo).

Where a woman, being a Roman Catholic, and a man, being a Protest-
ant, went in 1826 before W., a clergyman residing in Dublin, who, in his
private house, read to them the marriage service, and in the course of it
asked her whether she would be the wife of the man, and asked him
whether he would be her husband, to which question both of them
answered, ' I will ' ; W. was reputed to be a clergyman of the Established

(t) R. V. Miffis [1843], 8 B. R. 844: 10 «. (Lyndhurst), Lord Cottenliam, and Lord

& F. 534. The case was tried at assizes Abinger held it Void ; whereupon, accord -

and a special verdict found which was ing to the ancient rule in the law, semjier

removed by certiorari into the Court of prcesumitur pro negante, judgment was

Queen's Bench. Perrin and Crampton, JJ., given for the defendant. In Beamish v.

held the first marriage good ; but Penne- Beamish, 9 H. L. C. 274 ; HE. R. 735,

father, C.J., and Burton, J., held it to it was held that this judgment was as much

be void. In order that ' error ' might bo binding as if it had pronounced nemine

brought in the House of Lords, Perrin,

J., withdrew his opinion, and judg- (u) 2 Hagg. (Consist.) 54.

ment was given for the prisoner. In [v] Smith v. Maxwell, Ry. & M. 80.

the House of Lords, Lords Brougham, (w) Stockbridge v. Quicke, 3 C. & K.

Denman, and Campbell held the first 305. See 7 & 8 Vict. o. 81, post, p. 1004.

marriage good ; but the Lord Chancellor

1004 Offences as to Marriage. [BooK IX.

Church, and a document purporting to be letters of orders signed and
sealed by the late Archbishop of Tuam, dated in 1799, whereby the
archbishop certified that he had ordained W. a priest, and which letters
were found among W.'s papers at the time of his death in July, 1829,
was admitted without proof of the handwriting or seal of the archbishop
as being more than thirty years old. It was held that this document
was properly received in evidence, being above thirty years old : if it
had been only signed there could have been no question as to its admis-
sibility, but it was, in fact, also sealed ; but though an archbishop is a
corporation sole for many purposes, yet such a certificate has no relation
to his corporate character, and the seal must be considered as the seal of
the natural person, and not of the corporation ; and consequently that
there was sufficient evidence of the marriage {x).

In a case in 1815 at the Old Bailey, a question was made, whether a
marriage of a dissenter in Ireland performed in 1787 by a dissenting
minister in a private room, was valid. It was contended on behalf of
the prisoner, who was indicted for bigamy, that the marriage was illegal
from the clandestine manner in which it was celebrated ; and several
Irish statutes were cited, from which it was argued that the marriage of
dissenters in Ireland ought at least to be in the face of the congregation,
and not in a private room. But the recorder is said to have been clearly
of opinion that this marriage was valid, on the ground that as, before
Lord Hardwicke's Act (26 Geo. II. c. 33), a marriage might have been
celebrated in England in a house, and it was only made necessary by the
enactment of positive law, to celebrate it in a church, some law should
be shewn requiring dissenters to be married ia a church, or in the face
of the congregation, in Ireland, before this marriage could be pronounced
to be illegal; whereas one of the Irish statutes, 21 & 22 Geo. III. c. 25 {y),
enacted that all marriages between Protestant dissenters, celebrated by
a Protestant dissenting teacher, should be good, without saying at what
place they should be celebrated (z).

Under the Marriages (Ireland) Act, 1844 (7 & 8 Vict. c. 81), passed to
remove the mischiefs created by the decision in R. v. Millis {ante, p.
1003), a marriage may be lawfully solemnised in certain registered places
of public worship or before a registrar.

By sect. 4, ' Marriages between parties, both or either of whom are
Presbyterians, may be solemnized between 8 a.m. and 2 p.m., with open
doors, according to the forms used by Presbyterians, in certified meeting-
houses, by licence of a Presbyterian minister or by pubUcation of
banns ' {a).

Sect. 32. ' After any marriage shall have been solemnized it shall

not be necessary in support of such marriage to give any proof of the actual

(x) R. V. Bathwiok, 2 B. & Aid. 639. hia first marriage, upon which this question
(y) Repealed in 1879 (S. L. R. Ir.). All was raised, took place in 1787, at London-
the enactments of the Irish Parliament derry. The second marriage was cele-
relating to persons forbidden to solemnise brated in London according to the cere-
marriage are repealed except 12 Geo. I. monies of the Church of England,
li. 3, s. 1, which is against clandestine (a) A marriage before this Act by a
marriages. Vide ante, p. 1002, note (s). Presbyterian minister in Ireland was held

(z) R. u. , Old Bailey, Jan. Seas. void. R. v. Milha, ante. p. 1003. The mar-

1815, cor. Silvester, Recorder, MS. The riage laws in Ireland are not altered by

prisoner was an officer in the army ; and 49 & 50 Vict. c. 14.

CHAP. XII.] Of Bigamy. 1005

dwelling of either of the parties previous to the marriage, within the district
or presbytery (as the case may be), wherein such marriage was solemnized,
for the time required by this Act, or of the consent of any person whose
consent thereunto is required by law (&) ; and where a marriage shall
have been solemnized in a certified Presbyterian meeting-house, it shall
not be necessary to prove that either of the parties was a Presbyterian,
or, if the marriage was by licence, that the certificate required to be
delivered to the minister granting such licence had been so deHvered, or,
where the marriage was by banns, that a certificate of the publication of
banns had been produced to the minister by whom the marriage was
solemnized, in cases where such production is required by this Act ; nor
shall any evidence be given to prove the contrary of any of these several
particulars in any suit touching the validity of such marriage, or in which
such marriage shall be questioned.'

By sect. 49, ' Except in the case of marriages byEoman Catholic priests,
which may now be lawfully celebrated, if any person shall knowingly and
wilfully intermarry after the said thirty-first day of March [1845] in any
place other than the church or chapel or certified Presbyterian meeting-
house, in which banns of matrimony between the parties shall have been
duly and lawfully published, or specified in the licence, where the marriage
is by Hcence, or the church, chapel, registered building or office, specified
in the notice and registrar's certificate or licence as aforesaid, or without
due notice to the registrar, or without certificate of notice duly issued, or
without licence from the registrar, in case such notice or hcence is necessary
under this Act, or in the absence of a registrar where the presence of a
registrar is necessary under this Act, or if any person shall knowingly or
wilfully, after the said thirty-first day of March, intermarry in any
certified Presbyterian meeting-house without pubhcation of banns, or
any hcence, the marriage of aU such persons, except in any case
hereinbefore excepted, shall be null and void.'

By the Marriage Law (Ireland) Amendment Act, 1863 (26 & 27 Vict,
c. 90), s. 11, in the case of all marriages which may legally Idc solemnised
in Ireland and do not come within the Marriages (Ireland) Act, 1844,
or any Act amending it, the parties about to contract the marriage must
produce to the clergyman celebrating the marriage a certificate in the
form prescribed by the Act (sched. A.) from the registrar of the district
in which the marriage is to be solemnised. The certificate is to be
signed by the parties, and the witnesses not less than two, and the
clergyman, and within three days of the marriage to be posted to the
registrar, and by him entered upon the register (s. 13).

The Matrimonial Causes and Marriage Law (Ireland) Amendment
Act, 1870 (c), contains provisions as to the churches in which marriages
maybe celebrated (s. 32), the solemnisation of marriages (s. 33), and as to
the grant of licences for marriages by certain specified officials (ss. 34r-37),
including the secretary of the conference of the Methodist or Wesleyan
Church in Ireland {d).

(6) This to some extent alters the law of voidable only if proceedings were taken

Ireland aa laid down in R. v. Jacobs, 1 within the year.

Mood. 140, that want of consent under (c) Amended in 1871 (34 & 35 Vict. c. 49).

9 Geo. II. 0. 11 (Ir. rep.) made the marriage (d) 34 & 35 Vict. o. 49, s. 21.

1006 Offences as to Marriage. [book ix.

By sect. 38, ' a marriage may, notwithstanding anything to the
contrary hereinbefore in this Act contained, be lawfully solemnized by a
Protestant Episcopalian clergyman between a person who is a Protestant
Episcopalian and a person who is not a Protestant Episcopalian, and by a
Roman Catholic clergyman between a person who is a Roman Catholic
and a person who is not a Roman Catholic, provided the following
conditions are complied with ; —

1st. That such notice is given to the registrar and such certificate
is issued as at the time of the passing of this Act is required by
the Marriages (Ireland) Act, 1844, as amended by the Marriage
Law (Ireland) Amendment Act, 1863, in every case of marriage
intended to be solemnized in Ireland according to the rites of
the united Church of England and Ireland, with the exception
of marriages by licence or special licence, or after the publication
of banns.
2nd. That the certificate of the registrar is delivered to the clergy-
man solemnizing such marriage at the time of the solemnization
of the marriage.
3rd. That such marriage is solemnized in a building set apart for
the celebration of divine service, according to the rites and
ceremonies of the rehgion of the clergyman solemnizing such
marriage, and situate in the district of the registrar by whom
the certificate is issued.
4th. With open doors.

5th. That such marriage is" solemnized between the hours of eight

in the forenoon and two in the afternoon, in the presence of two

or more credible witnesses.'

Sect. 39, after repealing 19 Geo. II. c. 13 (Ir.), as to avoiding marriages

between Papists and certain Protestants, enacts that ' any marriage

solemnized by a Protestant Episcopalian clergyman between a person

who is a Protestant Episcopalian and a person who is not a Protestant

Episcopalian, or by a Roman Catholic clergyman between a person who

is a Roman Catholic and a person who is not a Roman Catholic, shall be

void to aU intents in cases where the parties to such marriage knowingly

and wilfully intermarried without due notice to the registrar, or without

certificate of notice duly issued, or without the presence of two or more

credible witnesses, or in a building not set apart for the celebration of

divine service, according to the rites and ceremonies of the religion of

the clergyman solemnizing such marriage ' (e).

By 34 & 35 Vict. c. 49, s. 27, ' Whenever a licence for the marriage
of a Roman CathoUc with a person not a Roman Catholic shall have been
issued, pursuant to ss. 25 or 26 of this Act, such marriage may lawfully
be solemnized by a Roman Catholic clergyman between such persons ' (/).
Subsisting. — The prosecution must prove that the first husband or
wife was aUve at the date of the second marriage. This fact may be

(/) Before these Acts a marriage cele- v. Orgill, 9 0. & P. 80 ; Swift v. Swift, 3

brated in Ireland between a Roman Knapp, 303. Yelverton v. Yelverton,

Catholic and a Protestant by a Roman House of Lords, per Lord Wenaleydale.
Catholic priest was void. 19 Geo. IL c. 13,

CHAP. XII.] Of Bigamy. 1007

established by tbe appearance in Court and identification of the party,
or by any person who knows the parties and can distinctly prove that the
first husband or wife was alive at the crucial date.

In Eeed v. Norman {g), where a daughter wrote- to her father in
America and the fact that she about two months afterwards received a
letter in reply in his handwriting dated 31st May, 1836, was held to be
evidence that he was then alive.

There is no presumption of death from the mere fact that it is long
since the first husband or wife was last seen or heard of {h).

In R. V. Lumley {i), the prisoner was convicted of bigamy. The first
marriage was with V., in the year 1836. The second marriage was with
L., on July 9, 1847. The prisoner hved with V. till the middle of 1843,
when they separated, and from that time no more had been heard of him.
There was no evidence as to his age. The judge at the trial directed the
jury that it was a presumption of law that V. was alive at the time of the
second marriage. Upon a case reserved it was held, that there was no
presumption of law that life continued for seven years, or for any other
period after the time of the latest proof of the life of the party, and that
it was a question of fact for the jury, under the circumstances of each case,
whether a person be alive or dead at any time within the interval of seven
years, at the termination of which the protection afforded by statute in
cases of bigamy comes into operation, and the conviction was quashed.

In R. V. WiUshire (i), the prisoner had married B. E. in 1864, and
while she was stiU alive he, in April, 1868, married A. L. He was convicted
of bigamy for this, and in 1879 he married C. L., and while C. L. was still

(g) 8 C. & p. 65. Denman, C.J., held probability find that he was so. If, on the

in the same case, that the postmark was other hand, it were proved that he was then

evidence that the letter was put into the in a dying condition and nothing further

post, but that the letter might have been was proved, they would probably decline to

written at any time, and therefore proof draw that inference. Thus the question is

was given that it was in reply to the entirely for the jury. The law makes no

daughter's letter ; but this seems to have presumption either way. The cases cited

been unnecessary, for the date is -prima of R. v. Twyning, 2 M. & W. 894 ; R. v.

facie, evidence of the time when an instru- Harborne, 2 A. & E. 540 ; and Doe d.

ment is written. See R. v. Harborne, 2 Knight v. Nepean, 5 B. & Ad. 86, appear

A. & E. 540. Sinclair v. Baggaley, 4 M. & to establish this proposition. Where the

W. 313. Hunt V. Massey, 5 B. & Ad. 903. only evidence is that the party was living

Potez V. Glossop, 2 Ex. 191. Anderson v. at a period which is more than seven years

Weston, 6 Bing. (N. C.) 296. Morgan v. prior to the second marriage, there is no

Whitmore, 6 Ex. 716. question for the jury. The proviso in the

(h) See R. v. Lumley, L. R. 1 C. C. R. Act then comes into operation, and exon-

196. R. V. WiUshire, 6 Q.B.D. 366, infra. erates the prisoner from criminal oulpa-

(i) L. R. 1 C. 0. R. 196 ; 38 L. J. M. C. 86. biUty, though the first husband or wife

In an indictment for bigamy it is inoum- be proved to have been living at the time

bent on the prosecutor to prove to the satis- when the second marriage was contracted,

faction of the jury that the husband or wife. The Legislature by this proviso sanctions a

as the case may be, was ahve at the date presumption that a person who has not

of the second marriage, and that is purely been heard of for seven years is dead ;

a question of fact. The existence of the but the proviso affords no ground for the

party at an antecedent period may or may converse proposition, viz., that when a

not afford a reasonable inference that he party has been seen or heard of within

was living at the subsequent date. If, for seven years a presumption arises that he

example, it were proved that he was in is still living. That is always a question of

good health on the day preceding the second fact. See Murray w. R., 7 Q.B. 700. R. v.

marriage, the inference would be strong, Apley, 1 Cox, 71.

almost irresistible, that he was living on {j) 6 Q.B.D. 366 ; 50 L. J. M. C. 57.
the latter day, and the jury would in all

1008 Offences as to Marriage. [book ix.

alive he, in September, 1880, married E. M. For this last marriage he
was again indicted for bigamy, the indictment charging that ' his wife
C was then alive. There was no evidence that E. E. was alive at the
date of the prisoner's marriage to C. L., — which would have made that
marriage invalid, — and the judge held that under the circumstances the
burden of proving that B. E. was alive at that date lay on the prisoner.
He was convicted, but the Court quashed the conviction on the ground
that it was a question for the jury whether upon the facts proved E. E.
was alive at the date of the prisoner's marriage to C. L. If E. E. was
alive at the date of the prisoner's marriage to C. L. that marriage was
void {jj) ; and that marriage being void, the subsequent marriage with
E. M. would not be bigamous, unless the prisoner could be shewn to have
known of E. E.'s having been alive within the seven years, and even in
that case he could not have been convicted on the indictment as it stood.

Continual Absence for Seven Years. — 24 & 25 Vict. c. 100, s. 57, does
not extend to ' any person marrying a second time, whose husband or
wife shall have been continually absent from such person for the space
of seven years then last past, and shall not have been known by such
person to be Hving within that time ' {k).

This exception is available only as a defence to an indictment for
bigamy, and even if proved does not vaUdate the second marriage [I).

Where there has been such absence, the burden of proof is not upon
the prisoner to shew that it was not known to him or her that the wife
or husband was living within such time. On an indictment for bigamy,
it was proved that the prisoner and his wife had lived apart for seven
years, and that the prisoner then married again. There was no evidence
of the prisoner's knowledge of the existence of his first wife at the time
he married again. The prisoner was convicted. It was held, that the
burden of proof that the prisoner did not know that his wife was aUve
at the time he contracted the second marriage was not on the prisoner,
and that the conviction could not be sustained (m).

But where there was no evidence of any separation or of the date when
the prisoner last saw his wife, it was held that the presumption was that
the first wife was living at the time of the second marriage, although it
took place seventeen years after the first marriage (n).

Even where the first husband or wife has not been continually absent
for seven years it is a good defence to prove a hona 'fide belief upon reason-
able grounds that at the time of the second marriage the first husband
or wife was dead (o). Such hona fide belief is not sufficient unless proper
and reasonable inquiries have in fact been made by the prisoner (p).

[jj] There being evidence that E. E. wag (m) R. v. Curgerwen, L. R. 1 0. G. R. 1.

alive in 1868, in the absence of evidence to See R. v. Heaton, 3 F. & F. 819.

the contrary she must be presumed to have (n) R. v. Jones, 11 Q.B.D. 118.

been ahve in 1879, though her disappear- (o) R. v. Tolson, 23 Q.B.D. 168,

ance for over seven years would be a bar Coleridge, L.C.J., Hawkins, Stephen, Cave]

to conviction for bigamy with E. M. Vide Day, A. L. Smith, Wills, Grantham, and

infra. Charles, JJ. : diss. Denman, Field, Manlsty,

[k) See 1 Hale, 693 ; 3 Co. Inst. 88 ; 4 JJ., and Pollock and Huddleston, BB., vide

Bl. Com. 164 ; 1 East P. C. 466 ; R. v. ante, p. 101.

Cullen, 9 C. & P. 681 ; R. v. Jones, C. & (p) R. v. Thomson [1905], 70 J. P. 6,

M. 614 ; R. V. Briggs, D. & B. 98. Bosanquet, Common Serjeant. Gf. R. v.

[I) 4 Bl. Com, 164, note. Sellars [1905], 9 Canada Crim. Cas. 153.

CHAP. XII.] Of Bigamy. 1000

But the fact tliat the prisoner deserted his first wife does not
deprive him of the defence created by the exception or that of horm fide
belief {q).

Second Marriage. — It is necessary to prove that the prisoner went
through a form of marriage with the second consort which, but for the
existence of the impediment of the former marriage, would have been
recognised as a marriage valid in form by the law under whose forms it
was celebrated. The words of the statute, ' whosoever being married shall
marry any other person,' are to be read as though they were, ' whosoever
being married shall go through the form and ceremony of marriage,' and
the form and ceremony gone through must be such as is known to
and recognised by the law as capable of producing a valid marriage, and
such a circumstance as that the parties are within the forbidden degree
of consanguinity will not prevent the marriage from being bigamous.
Where a married woman went through the ceremony of marriage with
her deceased sister's husband, it was held that although such second
marriage was void under the Marriage Act, 1835 (5 & 6 Will. IV. c. 54, s.
2, ante, p. 996), yet she had committed the crime of bigamy (r).

Where the prisoner's first wife being dead, he married again, and
subsequently went through the form of marriage with his first wife's
niece, that marriage was held to be void, but it was also held that the
prisoner was rightly convicted of bigamy (s).

Where in order to establish a charge of bigamy in a divorce suit it
was proved that the husband married a woman in Australia according
to the forms of the Church of Scotland, but there was no proof that such
forms were recognised as legal by the laws of the colony, it was held that
the bigamy was not established {t).

(q) R. V. Faulkea, 19 T. L. R. 250, unauthorised person, or in an. Unauthorised

Kennedy, J. Cf. R. v. Siffers [1904], place, would be a " marrying " within the

N. S. W. State Rep. 320. meaning of the 57th section of the 24 & 25

(r) R. V. Brawn, 1 C. & K. 144, Denman, Vict. It will be time enough to deal with

C.J. Such marriages contracted in the a ease of this description when it arises.

U.K. are no longer void or voidable as It is sufficient for the present purpose to

civil contracts, and such marriages con- hold, as we do, that where a person already

tracted before Aug. 28, 1907, are with bound by an existing marriage goes through

certain savings declared valid (7 Edw. VII. a form of marriage known to and recognised

0. 47, s. 1). Marriage with the sister of a by the law as capable of producing a valid

divorced wife is during the lifetime of the marriage, for the purpose of a pretended

latter still unlawful, s. 3 (2). and fictitious marriage, the case is not the

(s) R. V. Allen, L. R. 1 C. C. R. 367, 41 L. less within the statute by reason of any

J. M. C. 97, which overrules the decision in special circumstances which, independently

. R. V. Fanning, 10 Cox, 411 (Ir.), that bigamy of the bigamous character of the marriage,

was not committed in respect of a marriage may constitute a legal disability in the

by a Roman Catholic priest, of a Protestant particular parties, or make the form of

to a Catholic, declared void by the Irish marriage resorted to specially inapplicable

Act, 19 Geo. II. c. 13. Cf, R. v. Wright, to their individual ease.'
28 Ir. L. T. R. 131. In R. v. Allen the (t) Burt v. Burt, 29 L. J. P. & IT. 133,

Court said : ' In thus holding, it is not at approved in R. v. Allen, supra. It has been

all necessary to say that forms of marriage held by a majority of the Court in Ireland

unknown to the law, as was the case in that where the first marriage is shewn to

Burt V. Bxirt, infra, would suffice to bring have been contracted in a foreign state

a case within the operation of the statute. according to the laws of the Roman

We must not be understood to mean that Cathoho church it will be presumed to be

every fantastic form of marriage to which valid without proof of the law of that state

parties might think proper to resort, or relating to marriage. R. v. GrifiGin, 14 Cox,

that a marriage ceremony performed by an 308.

VOL. I. 3 T

1010 Offences as to Marriage. [book ix.

Dissolution or Nullification.— If the first husband or wife is proved to
have been alive at the date of the second marriage, it is for the defence
to prove the dissolution or nullification of the marriage and not for the
prosecution to negative it.

The third exception to sect. 57 {ante, p. 980) provides that the
section shall not extend to any person who at the time of such second
marriage shall have been divorced from the bond of the fijst marriage by
a Court of competent jurisdiction (u). A judicial separation which has
the effect of a divorce a mensd et thoro is not within the exception (v).
Under the Act of James, if a divorce a vinculo had been decreed, though
an appeal by one of the parties suspended the sentence, a marriage
pending the appeal was aided by the exception in that statute (w).

Under the present law a divorced person may marry again immediately
after the decree of divorce has been inade absolute, if the time limited
for appealing has expired and no appeal has been presented, or if the
appeal presented has been dismissed or on the appeal the marriage has
been dissolved (x).

To avail as a defence the divorce must be by statute (y) or by the
judgment of a Court having jurisdiction to dissolve the first marriage.
It would seem that the words, ' by a Court of competent jurisdiction,' in
sect. 57 apply to divorce a vinculo as well as to nullity.

It is immaterial where the divorce was granted if the Court granting
it had jurisdiction to pronounce a decree of divorce between the
parties. This jurisdiction, according to the English view of inter-
national law, depends on the domicil of the husband at the date of the
proceedings.

In Lolley's case (2;) the prisoner was indicted under 1 Jac. I. c. 11, for
bigamy. Both his marriages were in England ; but before his second
marriage his wife had obtained a divorce a vinculo from him in the
Commissary or Consistorial Court of Scotland (a). It appeared that he
took his wife into Scotland, that she might be induced to institute a suit
against him there ; and that he cohabited with a prostitute there, for the
very purpose of irritating his wife, and furnishing ground for the divorce.
The question then arose whether the Scotch divorce came within the
exception in the statute of James. The point was reserved. The judges
were unanimous that no sentence or act of any foreign country or state

(m) The Act of James did not apply {x) The appeals are now usually from

where the first marriage was between the decree nisi, 20 & 21 Vict. c. 85, s. 57 ;

persons below the age of consent, 3 Co. 44 & 45 Vict. c. 68, ss. 9, 10. See Chich-.

Inst. 59, nor where a divorce a mensd et ester v. Mure, 32 L. J. Mat. 146.

thoro has been granted. 1 Hale, 694. 3 Co. (j/) As in the case of marriages of persons

Inst. 89. 1 Hawk. c. 42, s. 5. 4 Bl. Com. domiciled in Ireland.

164. Middleton's case. Old Bailey, 14 Car. (z) R. & R. 297 & MS. Bayley, J. :

II. Kel.( J.)27. And see 1 East, P. C. 467. 2 CI. & F. 567n. The case is referred

{v) Matrimonial Causes Acts, 1857 (20 to by the Lord Chancellor in Tovey v.

& 21 Vict. c. 85), ss. 16, 27, and 1884 (47 Lindsay, 1 Dow. (H.L.)117,and see5Evans,

& 48 Vict. 0. 68), s. 5. Coll. St. 348, note (4).

(w) 3 Co. Inst. 89. 1 Hale, 694, citing (a) Upon the subject of the dissolution

Co. P. C. u. 27, p. 89, and stating further of marriages, celebrated under the English

that if the sentence of divorce be reversed law, by the Consistorial Court of Scotland,

or recalled, a marriage afterwards is not see a publication of Reports of some

aided by the exception, though there was Decisions of that Court, by James Eergus-

once a divorce. son, Esq., Advocate, one of the judges.

CHAP. XII.] Of Bigamy. 1011

could dissolve an English marriage a vinculo for grounds on which it was
not liable to be dissolved a vinculo in England ; and that no divorce of
an Ecclesiastical Court was wijthin the exception in the third section of
the statute, unless it was the divorce of a Court within the limits to which
that statute extended (6) . The judges gave no opinion upon the husband's
conduct in drawing on his wife to sue for the divorce, because the jury-
had not found fraud.

It is clear that in Lolley's case the domicil of the husband was
English and not Scotch (c), and the case has been much commented upon,
and must be treated as either wrong in itself or as inapplicable to the
words of the present statute, which contains the words ' any Court of
competent jurisdiction,' and is not limited like the Act of James to
Ecclesiastical Courts. According to the ruling decisions, both in the
House of Lords {d) and in the Privy Council (e), the test of competency
of a Court to grant a divorce a vinculo depends not on the place where
the marriage was celebrated nor on the nationality of the parties, but on
the bona fide existing domicil of the husband at the date when the Court
is asked to exercise its jurisdiction {/). The English Courts will, however,
recognise a decree of divorce by a Court not of the domicil if the Court
of the domicil would recognise the decree {g).

The EngUsh Courts wiU recognise as vaUd the decision of a
competent Christian tribunal, dissolving the marriage between a person
domiciled in the country where such tribunal has jurisdiction, and
an English woman, when the decree of divorce is not impeached
by any species of collusion or fraud, and this although the marriage
may have been solemnised in England, and may have been dissolved
for a cause which would not have been sufficient to obtain a divorce in
England (h).

The fourth exception to sect. 57 {ante, p. 980) is that the Act shall not
extend ' to any person whose former marriage shall have been declared
void by the sentence of any Court of competent jurisdiction.' It was
resolved upon the Act of James, by all the judges, that a sentence of the
spiritual Court against a marriage, in a suit of jactitation of marriage, was
not conclusive evidence so as to stop the counsel for the Crown from proving
the marriage ; the sentence having decided on the invalidity of the marriage
only collaterally, and not directly ; and further, admitting such sentence to
be conclusive, yet that counsel for the Crown might avoid the efiect of such
sentence, by proving it to have been obtained by fraud or collusion {i).

(b) The words of 1 Jao. I. o. 11, were (c) See Harvey v. Famie, 5 P. D. 153;

' divorced by any sentence in the Eccle- 6 P. D. 35, Le Mesurier v. Le Mesurier

aiasHcal Court.' The words of s. 57 are, [1895], A. C. 517. Bater v. Bater [1906],

' divorced from the bond of the first P. 209, 229, 235.

marriage.' 'These words are so much more (d) Harvey v. Famie, 8 App. Cas. 43.

general, that it may be contended that (e) Le Mesurier v. Le Mesurier, ubi sup.

they except every case where, according (/ ) As to circumstances under which a

to the laws of the country where the wife may be entitled to seek dissolution

divorce takes place, there is a legal divorce in the ooimtry where she resides. See

a vinculo matrimonii, and the words " any Ogden v. Ogden [1908], P. 46, 82.
Court of competent jurisdiction " in the {g) Armitage v. Att.-Gen. [1906], P. 135.

next clause, instead of the words " the {h) Harvey v. Farnie, ubi sup. Of.

Ecclesiastical Court," in ,1 Jac. I. c. 11, Bater v. Bater, ubi sup.
seem to favour this view of the exception.' (i) Duchess of Kingston's case [1776], 20

C. S. G. St. Tr. 355 ; 2 Smith, L. C. (11th ed.) 731.

3t2

1012 Offences as to Marriage. [book ix.

There is no exception in the Act where marriages are within the age
of consent (/).

The dissolution or nullification of the marriage must be proved by-
producing the private Act {h) or the judgment, decree, or sentence of the
Court which purported to dissolve or annul the marriage, and by estab-
lishing the competence of the tribunal to grant a decree which is valid
according to English views of international private law.

It has been held that a Jewish divorce can only be proved by producing
the document of divorce delivered by the husband to the wife (Z). But
this ruling, if good for any purpose (m), does not apply to dissolution or
nullification in England of a Jewish marriage, and if still applicable to such
divorces granted abroad must be supplemented by evidence that such
divorce was valid in the country in which it took place, e.g. in Turkey,
where marriage and divorce are regulated by the law of the religious
community to which the parties belong (w).

Sect. II. — False Statements Made to Obtain or Prevent Marriage.

By the Marriage Act, 1823 (4 Geo. IV. c. 76), ' For avoiding all fraud
and collusion in obtaining licences for marriage ' (o), it is enacted (s.I4),
' that before any such licence be granted, one of the parties shaU personally
swear before the surrogate [f), or other person having authority to grant
the same, that he or she believeth that there is no impediment of kindred
or alliance or of any other lawful cause nor any suit commenced in any
Ecclesiastical Court to bar or hinder the proceeding of the said matrimony
according to the tenor of the said licence, and that one of the parties hath
for the space of fifteen days immediately preceding such licence had his
or her usual place of abode within the parish or chapelry within which
such marriage is to be solemnized : and where either of the parties, not
being a widow or widower, shall be under the age of twenty-one years,
that the consent of the person or persons whose consent is required under
the provisions of this Act (</) have been obtained thereto : Provided
always, that if there be no such person or persons having authority to
give consent, then upon oath made to that efJect by the party requiring
such licence it shall be lawful to grant such licence notwithstanding the
want of any such consent.'

(j) See R. V. Birmingham, 8 B. & C. 29. Act of 1823. In R. v. Fairlie, 9 Cox, 209, the

As to former law see ante, p. 995, note (p). defendant was indicted for falsely swearing

(k) In the case of Irish marriages. before a surrogate that the father had given

(I) Lacon v. Higgins, 3 Stark. (N. P.) 178. his consent to the marriage of his daughter.

(m) See the learned note by the reporter, The evidence was that the girl was the

ibid. illegitimate daughter of G. E., who had not

(n) See Parapano v. Happaz [1894], given his consent to her marriage. The

A. C. 195. Recorder held that, as the indictment had

(o) By the rites of the Church of England. described G. E. as the natural and lawful

(p) By the canon law and the practice father, and the evidence shewed that

of the Ecclesiastical Courts the surrogate has E. A. E. had no natural and lawful father,

power to administer the oath (see canon the prisoner must be acquitted, on the

103 of 1603 and R. v. Chapman, 1 Den. ground of variance between the indictment

432, Parke, B.). And see 7 Will. IV, & 1 Vict. and the evidence. The question whether

i;. 22, B. 30, -post, p. 1013. By 3 Geo. IV. the putative father came within 4 Geo. IV.

c. 75, s. 10 (rep.), a false oath before a c. 26, s. 16, was not decided,

surrogate was made perjury. No specific (q) ss. 16, 17.
provision to that effect is contained in the

CHAP. XII.] False Statements made to Obtain, dc, Marriage. 1013

An offence within tlie section may be committed by a person falsely
swearing that lie is one of the parties for whose marriage the licence is
required (r). The offence is committed even when the marriage has not
been and will not be solemnised (s). In R. v. Chapman (s) the prisoner
had personated the man for whom the licence was required and had falsely-
stated the residence of the woman.

An oath taken under the section which is false to the knowledge of the
taker in any one of the essential particulars required by the section,
seems not to be punishable as perjury but is indictable as a misdemeanor
at common law, because it is an attempt to deceive a public officer with
reference to a matter of public concern (t).

By sect. 30 of the Registration Act, 1837 (7 Will. IV. & 1 Vict. c. 22),
' Every person before whom by the said Acts ' (i.e. Marriage Act, 1836
(6 & 7 Will. IV. c. 85), or the Marriage Registration Act, 1836 (6 & 7
Will. IV. c. 86) ) ' or either of them, an oath is directed to be taken, is
hereby authorised to administer the same.'

By the Births and Deaths Registration Act, 1836 (6 & 7 Will. IV.
c. 86), s. 41, ' Every person who shall wilfully make or cause to be
made for the purpose of being inserted in any register (u) of .. . . marriage
any false statement touching any of the particulars herein required to be
known and registered (v) shall be subject to the same penalties as if he
were guilty of perjury ' (w).

To support an indictment under this section it is essential that the false
statement should have been made wilfully and intentionally and not
by mistake only (x).

The -Marriage Act, 1840 (3 & 4 Vict. c. 72), which provides for the
solemnisation of marriages in buildings out oi the district wherein one
or both parties have dwelt for the time required by the Marriage
Act, 1823 (ss. 1-3), enacts (s. 4) that ' every person who shall knowingly
and wilfully make any false declaration under the provisions of this Act
for the purpose of procuring any marriage out of the district in which
the parties or one of them shall dwell shall suffer the penalties of
perjury (y). Provided always that no such prosecution shall take place
after the expiration of eighteen calendar months from the solemnization
of such marriage.'

By the Marriage and Registration Act, 1856 (19 & 20 Vict. c. 119), s. 2,
' Every person who shall knowingly or wilfuUy make and sign or subscribe
any false declaration, or who shall sign any false notice (z) for the purpose

(r) R. V. Chapman, 1 Den. 432 ; decided under this section it is not necessary to

on 4 Geo. IV. c. 17. prove that the register in question was

(s) Id. ibid. provided by the Kegistrar-General. K. v.

(t) R. V. Chapman, 1 Den. 432, decided Brown [1848], 17 L. J. M. C. 145 ; 2 6. & K.

on a similar provision in 4 Geo. IV. c. 17 504.

(rep.). Vide ante, p. 528, and c/. R. v. (v) See s. 40 and sched. C. of the Act.

Foster, R. & R. 459. R. v. Verelst, 3 Camp. (w) The portions omitted (relating to

422. Such an oath, if taken by a layman, births and deaths) were repealed in 1874

seems not to be cognisable in an Ecclesi- (37 & 38 Vict. c. 88, s. 54).

astioal Court. Phillimore w.Maohon, 1 P. D. (a;) R. i: Lord Dunboyne, 3 C. & K. 1, 3,

4811. Campbell, C.J.

(m) The Registrar- General is required to {y) Ante, p. 455.

provide these registers (5 & 6 Will. IV. o. 86, (z) i.e. a notice to the registrar of

s. 30), but on a prosecution for an offence marriages.

1014 Offences as to Marriage. [book ix.

of procuring any marriage under the provisions of any of the said recited
Acts (a) or this Act shall suffer the penalties of perjury ' (&).

By sect. 18, ' Any person who shall Mowingly or wilfully make any
false declaration or sign any false notice required by this Act for the
purpose of procuring any marriage, and every person who shall forbid
the granting by any superintendent registrar of a certificate for marriage
by falsely representing himself or herself to be a person whose consent
to such marriage is required by law, knowing such representation to be
false, shall suffer the penalties of perjury' (c).

This penal provision extends to banns published or certificates issued
on King's ships at sea {cc).

By the Foreign Marriage Act, 1892 (55 & 56 Vict. c. 23), s. 15, ' If
a person —

{a) knowingly and wilfuUy makes a false oath {d) or signs a false
notice (e) under this Act, for the purpose of procuring a
marriage; or
(6) forbids a marriage under this Act by falsely representing himself
to be a person whose consent to the marriage is required by law,
knowing such representation to be false,
such person shall suffer the penalties of perjury (c) and may be tried
in any county in England and dealt with in the same manner in all respects
as if the offence had been committed in that county.'

By sect. 17, ' All the provisions and penalties of the Marriage Eegis-
tration Acts, relating to any registrar or register of marriages or certified
copies thereof , 'shall extend to every marriage officer, and to the registers
of marriages under this Act, and to the certified copies thereof (so far as
the same are applicable thereto), as if herein re-enacted and in terms
made applicable to this Act, and as if every marriage officer were a
registrar under the said Acts.'

By the Marriage Act, 1898 (61 & 62 Vict. c. 58), which relates to
marriages in buildings in England registered for solemnising marriage
therein under the Marriage Act, 1836, solemnisation of marriages may
take place without the presence of the registrar (unless the parties give
him notice requiring his attendance) but in the presence of a person duly
authorised under the Act and according to such form and ceremony as
the parties may see fit to adopt (ss. 4-10). The Act came into operation
on April 1, 1899 (s. 3), and it does not extend to Scotland or
Ireland (s. 2).

By sect. 12, ' If any authorised person refuses or fails to comply with
this Act or the enactments or regulations for the time being in force with
respect to the solemnization and registration of marriages he shall be

(a) The Marriage Act, 1836 (6 & 7 Will. law having been given.

IV. c. 85) : the Marriage Act, 1837 (7 Will. (c) Ante, p. 455.

IV. & 1 Vict. c. 22) : and the Marriage (cc) Naval Marriages Act, 1908 (8 Edw

Act, 1840 (3 & 4 Vict. o. 72). VII. o. 26), s. 3.

(h) i.e. solemn declaration in writing at (d) As to residence, necessary consents,

the foot of a notice of marriage, signed or and absence of impediments by kindred'

subscribed by a party intending marriage, alliance or otherwise (s. 7).

Ihat he or she believes there is no impedi- (e) See s. 4, forbidding maniage, with-

ment of kindred or affiance or other lawful out the consents required for a marriage

hindrance to the marriage, as to residence, in England,
and as to the consents, if any, required by

CHAP. XII.] Offences as to Solemnisation, Registration, &c. 1015

guilty of an offence against this Act, and shall be liable on summary
conviction to a penalty not exceeding £10, or on conviction on indictment
to imprisonment with or without hard labour for a term not exceeding
two years or to a fine not exceeding £50, and shall on conviction cease
to be an authorised person.'

By sect. 15, ' So much of sects. 39 and42of the Marriage Act, 1836 (/),
as punishes the solemnisation of or renders void any marriage by reason of
the absence of the registrar is hereby repealed as regards any marriage
authorised by and solemnized in accordance with this Act.'

By sect. 6 (3), " authorised person " is defined as " a person certified as
having been duly authorised for the purpose by the trustees or other
governing body of the building or of some registered building in the same
registration district " including by sect. 1 in the case of Koman Catholic
registered buildings " the bishop or vicar-general of the diocese." '

By the Naval Marriages Act, 1908 (8 Edw. VII. c. 26), s. 3, ' All
enactments (including penal provisions) relating —

(1) to the publication of banns and certificates thereof, and

(2) to notices and declarations for obtaining certificates from super-
intendent registrars and to such certificates and to all rules required
under such enactments to be observed shall apply in the case of marriages
to which this Act applies, subject to such adaptations therein as may be
made by his Majesty by Order in Council ' (gr).

Sect. III. — Offences With Eespbct to Solemnisation,
Ebgistration, &c.

Royal Marriages. — Marriages of members of the Eoyal family are
specially excepted from the Marriage and Registration Acts (A), and are
governed by the Eoyal Marriages Act, 1772 (12 Geo. III. c. 11), which
confirms the prerogative of the Crown to superintend and approve of the
marriages of the Eoyal family (t). The first section enacts, ' That no
descendant of the body of his late Majesty King George the Second, male
or female (other than the issue of princesses who may have married, or may
hereafter marry, into foreign families) (/), shall be capable of contracting
matrimony without the previous consent of his Majesty, his heirs, or
successors, signified under the great seal, and declared in council (which
consent, to preserve the memory thereof, is hereby directed to be set out
in the licence and register of marriage, and to be entered in the books
of the privy council) ; and that every marriage or matrimonial contract
of any such descendant, without such consent first had and obtained,
shall be nuU and void to all intents and purposes whatsoever.'

The only words in the section essential to make the marriage valid
are those requiring the previous consent of His Majesty. The words
requiring the recording of the consent on the licence and register of

(/) 6 & 7 Will. IV. c. 85, ante, p. 987. IV. o. 85, s. 40 ; 55 & 56 Viot. o. 23, s. 23.

(g) The Act relates to the publication on (») 1 East P. C. 478.

King's ships at aea of the banns of officers, (j) On the mariiage of Princess Eugenie

seamen, or marines who are on the ship's Victoria of Battenberg to the King of Spain

books. in 1906, an Order in Council was made.

{h) 4 Geo. IV. ^. 76, s. 30 ; 6 & 7 Will.

1016 Offences as to Marriage. [book ix.

marriage are directory only, and apply only to cases where the marriage
is celebrated in England by licence (k).

By sect. 2 provision is made for a marriage, without the Royal
consent, of any such descendant, being above twenty-five years of age,
after notice to the privy council and the expiration of twelve months
after such notice ; in case the two Houses of Parliament do not before
that time expressly declare their disapprobation of the marriage.

By sect. 3, . . . 'Every person who shall knowingly or wilfully
presume to solemnize, or to assist or to be present at the celebration of
any marriage, with any such descendant, or at his or her making any
matrimonial contract, without such consent as aforesaid first had and
obtained, except in the case above mentioned, shall, being duly convicted
thereof, incur and suffer the pains and penalties, ordained and provided
by the Statute of Provision and Prcemunire made in the sixteenth year of
the reign of Richard the Second' (c. 5, Rev. Stat. (2nd ed.), vol. i. p. 173).

This Act applies to all Royal persons falling within its terms,
irrespective of the place v^here the marriage takes place (I) ; but the
penal clause is defective in not providing for the trial of British subjects
who violate the Act outside the realm (m).

Church of England. — It has not been decided whether refusal by a
clergyman of the Church of England to solemnise marriage between a
couple who are his parishioners is indictable (n). A man and woman who
had obtained a certificate of marriage from a registrar under 6 & 7 Will.
IV. c. 85, requested a clergyman to appoint a day and hour for marrying
them at his church. He refused to marry them unless the man consented
to be confirmed. For this refusal the clergyman was indicted as for a
statutory offence. The indictment failed for want of proof of a proper
demand, but the Court did not decide that the refusal would be indict-
able even by reference to the statute, and Patteson, J., said that refusal
to marry after banns would not be indictable (n).

The clergy of the Church of England and of the Protestant Episcopal
Church of Ireland are not subject to any obligation to solemnise the
marriage of a person whose former marriage has been dissolved on the
ground of his or her adultery (o) ; and a clergyman of the Church of
England is not bound to solemnise a marriage between a man and his
deceased wife's sister {'p).

The Marriage Act, 1823 (4 Geo. IV. c. 76), which relates only to
marriages by licence or banns in churches or chapels of the Established
Church of England, enacts (s. 21) that ' if any person shall, from and after
the said first day of November [1823], solemnize matrimony in any
other place than a church or such public chapel wherein banns may be
lawfully published, or at any other time than between the hours of eight
in the forenoon and three in the afternoon (q) unless by special licence
from the Archbishop of Canterbury; or shall solemnize matrimony

(k) Per Tindal, C.J., in advising the H.L, 167 ; 19 L. J. M. C. 179.
on the Sussex Peerage Gaim, 11 a. & F. (o) 20 & 21 Vict. o. 85,' s. 57. See s 58

85, 148 ; 6 St. Tr. (N. S.) 79. as to right to use his ohurob.

{I) Sussex Peerage Claim, ubi sup. The (p) 7 Edw. VII. c. 47, s. 1. The Act is

marriage took place in Rome by the rites silent as to ministers of non-established

of the Church of Rome. Churches.

(m) Id. ibid. (q) The hours were extended from 12

(») R. V. James, 2 Den. 1 ; 3 C. & K. noon to 3 p.m. by 49 & 50 Vict. c. 14.

CHAP. XII.] Offences as to Solemnisation, Registration, dec. 1017

without due publication of banns, unless licence of marriage be first had
and obtained from some person or persons having authority to grant the
same (r) : or if any person falsely pretending to be in holy orders, shall
solemnize matrimony according to the rites of the Church of England,
every person knowingly and wilfully so offending, and being lawfully
convicted thereof, shall be deemed and adjudged to be guilty of felony,
and shall be transported for the space of fourteen (s) years, according to
the laws in force for transportation of felons, provided that all prosecutions
for such felony shall be commenced within the space of three years after
the offence committed ' (t).

The mere fact of institution to a living is no evidence that the person
instituted is in orders, nor does it put him in the position of a person who
has received holy orders, nor make him compellable to celebrate marriages.
The question for the jury is, first, whether the prisoner has ever acquired
the position and status which made him an ordained minister (u), and
if not, whether he knew at the time he perforated the ceremony that he
had never been ordained (v).

The Marriage Act, 1836 (6 & 7 Will. IV. c. 85), provides for civil
marriages, at the office of a registrar of marriages, and for marriages in
his presence at a registered place of worship not belonging to the Church
of England, or by the rules of the Church of England on a certificate
from the registrar. By sect. 39, ' Every person who after the said first
day of March [1837], shall knowingly and wilfully solemnize any marriage
in England, except by special licence, in any other place than a church
or chapel in which marriages may be solemnized according to the rites
of the Church of England, or than the registered building or office speci-
fied in the notice and certificate as aforesaid, shaU be guilty of felony
(except in the case of a marriage between two of the Society of Friends,
commonly called Quakers, according to the usages of the said society,
or between two persons professing the Jewish rehgion, according to the
usage of the Jews), and every person who in any such registered building
or office shall knowingly and wilfully solemnize any marriage in the
absence of a registrar (w) of the district in which such registered building
or office is situated, shall be guilty of felony (a;) : and every person who
shall knowingly and wilfully solemnize any marriage in England after the
said first day of March (except by licence) within twenty-one days after
the entry of the notice to the superintendent registrar as aforesaid . . .{y)
shall be guilty of felony ' (z).

(r) As to marriages out of church see be Quakers or Jews (a. 32). C. S. G.

6 & 7 Will. IV. c. 85, s. 39, infra. {u) The proper mode of proving this is

(s) Now penal servitude ifrom three to by production of his letters of ordination,

fourteen years or imprisonment with or Forgery thereof is a misdemeanor at

without hard labour for not over two years common law. R. v. Etheridge, 19 Cox, 676.

(20 & 21 Vict. c. 3, s. 2 ; 54 & 55 Vict. c. 69, («>) R. v. Ellis, 16 Cox, 469, Pollock, B.

s. 1 ; ante, pp. 211, 212). {w) Repealed by 61 & 62 Vict. c. 58. s. 15

{t) See Lonsd. Cr. L. 140. The Act of (a»(e, p. 1015), as to marriages authorised by

1823 contains no provisions for the punish- and solemnized in accordance with that Act.

ment of principals in the second degree and {x) See 19 & 20 Vict. u. 119, s. 9, &o.

accessories. But the principals in the {y) The words here omitted were repealed

second degree are punishable like the in 1874 (37 & 38 Vict. c. 35). See 7 Will,

principals in the first degree. The Act does IV. and 1 Vict. c. 22, s. 3, post, p. 1018.

not extend to the marriages of any of (s) This being a felony for which no

the Royal family (s. 30), nor to any punishment is provided, is punishable

marriages amongst Quakers or Jews, where tmder 7 & 8 Geo. IV. o. 28, s. 8, as amended

both the parties to any such marriage shall by 54 & 55 Vict. c. 69, s. 1, ante, p. 246.

1018 Offences as to Marriage. [book ix.

It is presumed tliat the building in whicli a marriage was solemnised
was duly registered or licensed for marriage and that the registrar was
present {a).

Sect. 40. ' Every superintendent registrar who shall knowingly and
wilfully issue any certificate for marriage after the expiration of three
calendar months after the notice shall have been entered by him as
aforesaid, or any certificate for marriage by licence before the expiration
of seven days after the entry of the notice, or any certificate for marriage
without licence before the expiration of twenty-one days after the entry
of the notice (6), or any certificate, the issue of which shall have been
forbidden as aforesaid by any person authorised to forbid the issue of
the registrar's certificate, or who shall knowingly and wilfully register
any marriage herein declared to be null and void, and every registrar who
shall knowingly and wilfully issue any licence for marriage after the
expiration of three calendar months after the notice shall have been
entered by the registrar as aforesaid, or who shall knowingly and wiHully
solemnize in his oQice any marriage herein declared to be null and void,
shall be guilty of felony.'

Sect. 41. ' Every prosecution under this Act shall be commenced
within the space of three years after the offence committed.'

By the Births and Deaths Eegistration Act, 1837 (7 Will. IV. & 1
Vict. c. 22), s. 3, ' Every superintendent registrar who shall knowingly
and wilfully issue any licence for marriage after the expiration of three
calendar months after the notice shall have been entered by the superin-
tendent registrar, as provided by the Marriage Act, 1836 (c), or who shall
knowingly and wilfully solemnize, or permit to be solemnized in his office
any marriage in the last recited Act declared to be null and void (d), shall
be guiltv of felony ' (e).

By the Births and Deaths Eegistration Act, 1836 (5 & 6 Will. IV. c.
86), s. 42, ' Every person who shall refuse or without reasonable cause
omit to register any marriage solemnized by him which he ought to
register . . . and every person having the custody of the register book
or certified copy thereof or of any part thereof who shall carelessly lose or
injure the same or carelessly allow the same to be injured whilst in his
keeping shall forfeit a sum not exceeding £50 for every such offence.'

By the Forgery Act, 1861 (24 & 25 Vict. c. 98), s. 36 (/), it is made
felony punishable by penal servitude for life (gr) : —

(a) ' unlawfully ' to ' destroy, deface, or injure or cause or permit to
be destroyed, defaced, or injured any register of . . . marriages
. . . which now is or hereafter shall be by law authorised or
required to be kept in England or Ireland or any part of any such

(a) Sichel v. Lambert [1864], 33 L. J. 0. Crim. Ct. Soss. Pap., 29 Nov., 1854.

P. 137, a marriage by the ritea of the (e) Punishable under 7 & 8 Geo. IV. e.

Church of Rome. R. v. Cresswell [1876], 28, s. 8, ante, p. 246.

1 Q.B.D. 446; 45 L. J. M. 0. 77, a marriage (/) The section also deals with registers

by the rites of the Church of England. of births, baptisms, deaths, and burials.

(6) See 19 & 20 Vict. o. 119, s. 9, &o. (g) Or not less than three years, or im-

«"?"■"■ for not more than two years (54 & 55 Vict.

(i) 6&7 Will. IV. C.85, ». 42, ante, p. 987. c. 69, «. 1, ante, pp. 211, 212).
For instance of a prosecution see Cent.

CHAP. XII.] Offences with Respect to Registration. 1019

(b) to ' forge or fraudulently alter in any such register any entry
relating to any . . . marriage or any part of any such register or
any certified copy of such register or of any part thereof ' (i).

(c) ' knowingly and unlawfully ' to ' insert or cause or permit to be
inserted in any such register or in any certified copy thereof any
false entry of any matter relating to any . . . marriage ' (j).

(d) ' knowingly and unlawfully ' to ' give any false certificate relating
to any . . . marriage.'

(e) to ' certify any writing to be a copy or extract from any such
register knowing such writing or the part of such register whereof
such copy or extract shall be so given to be false in any material
particular.'

(f) to ' forge or counterfeit the seal of or belonging to any registry
office.'

(g) to ' offer, utter, dispose of, or put off, any such register, entry,
certified copy, certificate, or seal knowing the same to be false,
forged or altered.'

(h) to ' offer, utter, dispose of, or put off, any copy of any entry in
any such register knowing such entry to be false, forged or altered.'
Sect. 36 does not apply to the correction of accidental errors by the
officiating minister (h) or registrar [1).

By sect. 37 it is also felony punishable by penal servitude for life (m) : —

(a) ' knowingly and wilfully ' to ' insert or cause or permit to be
inserted in any copy of any register directed or required by law
to be transmitted to any registrar or other officer any false entry
of any matter relating to any . . . marriage.'

(b) to ' forge or alter ' or to ' offer, utter, dispose of, or put off, knowing
the same to be forged or altered, any copy of any register so
directed or required to be transmitted as aforesaid.'

(c) ' knowingly and wilfully ' to ' sign or verify any copy of any
register so directed or required to be transmitted as aforesaid
which copy shall be false in any part thereof, knowing the same
to be false.'

(d) ' unlawfully ' to ' destroy, deface, or injure, or for any fraudulent
purpose ' to ' take from its place of deposit or conceal any such
copy of any register.'

{h) Certified copies of registers of his name in the register as brother of the

marriages are made up four times a year bridegroom. To give false information

by the clergy, &c., who keep them, and sent for the purpose of insertion in the register

to the superintendent registrar or registrar or false information as to a death is within

of the district (6 & 7 Will. IV. c. 86, s. 33 ; the section. Anon. Anglesey Assizes, July

7 Will. IV. and 1 Vict. o. 22, s. 30); and the 24, 1875, Coleridge, L.C.J.

latter has also quarterly to send to the {k) See 11 Geo. IV. and 1 Will. IV. o.

Registrar- General the certified copies so 66, s. 21.

received (6 & 7 Will. IV. c. 86, s. 34). (l) 6 & 7 Will. IV. c. 86, s. 44.

(i) See post, p. 1732, tit. 'Forgery.' (m) Or not less than three years, or

(j) ITraudulent intention is not an imprisonment with or without hard labour

essential element in the offence. R. v. for not more than two years (54 &, 55 Vict.

Asphn [1873], 12 Cox, 391, where the c. 69, s. 1, ante, pp. 211, 212).
defendant was convicted of falsely signing

( 1020O )

CANADIAN NOTES.

OFFENCES WITH REFERENCE TO MARRIAGE.

Bigamy, Definition of. — Code sec. 307.

Incompetency no Defence.- — Code sec. 307(2).

Excuses. — Code sec. 307(3).

Bigamous Marriages Outside Canada. — Code see. 307(4).

Form Valid Despite Default of Accused. — Code sec. 307(5).

Jurisdiction of Parliament. — A British subject, domiciled in Can-
ada, and only temporarily absent, continues to owe to Her Majesty,
in relation to her government of Canada, an obligation to refrain from
the completion, whilst absent without any animus manendi, of a pro-
hibited act, a material part of which is committed by him in Canada.
Re Bigamy Sections ; R. v. Brinkley, 12 Can. Cr. Cas. 454.

The onus is on the Crown to prove the facts that the defendant w;as,
at the time of the second marriage, a British subject, resident in Can-
ada, and had left Canada with intent to commit the offence. R. v.
Pierce (1887), 13 Ont. R. 226.

"Where the indictment is laid under sub-section 4 of sec. 307, for
leaving Canada with intent, it should aver that the accused then was a
British subject resident in Canada (stating the place in Canada),
and that he then being married, left Canada with intent to go through
the form of marriage with another person, and did go through such
form of marriage in the foreign country (giving name, time and
place). R. V. McQuiggan, 2 Lower Canada R. 340.

It is suggested in Canada Criminal Law (Tremeear) p. 251, that a
British subject, resident in Canada, and punishable there for an offence
under sec. 307(4), might be tried and punished in England or Ireland
for a bigamous marriage in a foreign country, under Imp. Act. 24 & 25
Viet. ch. 100, sec. 57. Earl Russell's Case (1901), A.C. 446, supra 980.

Mens Ilea. — The provisoes (a) and (&) of sub-sec. 3, are supplemen-
tary to the common law doctrine of mens rea. A guilty mind is an
essential ingredient of the offence of bigamy, and if a woman, after
obtaining information that the man, with whom she has gone through a
form of marriage, is already married, leaves him and marries another
man, her honest and reasonable belief, that the man she left had a wife
living, is a good defence to a charge of bigamy. Semble, the fact of
such honest and reasonable belief may be found from the eircum-

10206 Offences as to Marriage. [book ix.

stances of the case without strict proof of the man's former marriage.
The King v. Sellars (1905), 9 Can. Cr. Cas. 153 (N.S.).

An absence of mens rea is not to be inferred from the knowledge
of the husband that a divorce had been decreed by the foreign Court
on his wife's application, and from his having first obtained legal
advice that he could legally marry a:gain. E. v. Brinkley (1907), 12
Can. Cr. Cas. 454, 13 O.L.E. 434. (Compare R. v. Thomson (1905),
70 J.P. 6.)

Lengthened Absence. — In R. v. Smith (1857), 14 U.C.Q.B. 565, the
first was living at the time of the second ceremony, and it was held that
the accused must shew enquiries made, and hona fide and reasonable
belief in the wife 's death, to excuse his conduct. This decision would
not now be followed in the light of R. v. Curgerwen (1865), L.R. 1
C.C.R. 1, and of the particular form of words used in sec. 407(&).

Evidence of a confession by a prisoner of his first marriage is not
evidence upon which he can be convicted (following R. v. Savage, 13
Cox 178 ; R. V. Ray, 20 Q.R. 212. But in R. v. Creamer, 10 L.C.R. 404,
the Court of the Queen's Bench (Quebec), decided to the opposite
effect. See also R. v. McQuiggan, 2 L.C.R. 346.

Validity. — On an indictment for bigamy, the witness called to prove
the first marriage, swore that it was solemnized by a justice of the
peace in the State of New York, who had power to marry; but this
witness was not a lawyer or an inhabitant of the United States, and did
not shew how the authority of the justice was derived. This evidence
was held to be insufficient. R. v. Smith (1857), 14 U.C.Q.B. 565; R.
V. Ray (1890), 20 O.R. 212.

Upon trials for bigamy proof is required of a first marriage in fact,
such as the Court can judicially hold to be valid; mere evidence of
cohabitation, and reputation &f being married, will not do. R. v.
Smith (1857), 14 U.C.Q.B. 656, per Robinson, C.J.

In another case to prove the second marriage, which took place in
Michigan, the evidence of the officiating minister, a clergyman of the
Methodist Church for twenty-five years, during which time he had
solemnized many marriages, that this marriage was solemnized accord-
ing to the law of the State of Michigan, was held admissible and
sufficient. R. v. Brierly (1887), 14 O.R. 535.

In Fact. — On a trial for bigamy, in proof of the prior marriage,
a deed was produced executed by the prisoner, containing a recital
of the prisoner having a wife and child in England, and conveying
real property to two trustees to receive and pay over the rents to his
wife, but with a power of revocation to the prisoner. B., one of the
trustees, proved the execution of the^deed, and that at the time of its
execution the prisoner informed him that he had a wife and child living
in England, but that he had never paid over any of the rents to her,
nor had he ever written to or heard from such alleged wife. It was

CHAP. XII. J Bigamy — Foreign Divorce. 1020c

held that this was not sufficient evidence to prove the alleged prior
marriage. R. v. Duff j(1878), 29 U.C.C.P. 255.

Foreign Divorce. — "Where both parties to a marriage in Canada
are of Canadian domicil, but afterwards become iond fide domiciled
in a foreign country, a decree of divorce, obtained in the foreign
country, while they are domiciled there, will be valid in Canada as a
defence to a prosecution of either for bigamy in having re-married. A
decree of divorce, granted by a Court foreign to the domicil of both
parties, pronounced by consent or collusion of the parties both tem-
porarily resident within its jurisdiction, and which recites due proof
of grounds sufficient under the foreign law for dissolving a marriage,
is invalid in Canada if it be proved that such recital is incorrect, and
that, in fact, no evidence was given. R. v. Woods (1903), 7 Can. Cr.
Cas. 226, 6 O.L.R. 41.

A foreign divorce will be valid when granted by the Courts of a
state in which the husband and wife had a bond fide domicil, although
the wife was living in this province, provided that she was personally
served with notice of the divorce proceedings, which were not collusive
or contrary to natural justice. Guest v. Guest, 3 O.R. 344.

If the parties have their domicil in a foreign country, and are
divorced there without collusion or fraud, by a Court of competent
jurisdiction, such a divorce is valid in Canada, and that quite irres-
pective of the place of marriage, or of the residence or allegiance of
the parties, or of their domicil at the time of the marriage, or of the
place in which the offence, in respect of which the divorce was granted,
was committed. Stevens v. Fiske, Cassels S.C. Dig. 235, 8 Montreal
Legal News 42 ; and see an article by W. E. Raney, K.C., in 34 C.L.J.,
pp. 546-553. And see Swaizie v. Swaizie, 31 O.R. 330.

Residence abroad is not sufficient to effect a change of domicil, even
where such domicil is not the domicil of origin, but one acquired by
choice, unless it is accompanied by an intention to remain abroad, and
not to return to the former domicil. Bonbright v. Bonbright (1901),
2 O.L.R. 249; McNamara v. Constantineau, 3 Rev. de Jur. (Que.) 482.

A foreign divorce, obtained by the wife of a British subject, domi-
ciled in Canada without service of process on the husband, or submis-
sion on his part, to the jurisdiction of the foreign Court, is ineffective
to dissolve a marriage performed in Canada, although the wife had,
some years before applying for the divorce, left her husband, and taken
up residence in the foreign country. A British subject, married and
domiciled in Canada, who goes to the United States, accompanied
by another woman, for the purpose of marrying her there, and who
goes through the form of marriage with her there, and forthwith
returns with her to Canada, is guilty of bigamy, and is properly con-
victed thereof in Canada under sec. 307, notwithstanding such foreign

1020(Z Offences as to Marriage. [book ix.

divorce obtained by his first wife. R. v. Brinkley (1907), 12 Can. Cr.
Cas. 454, 14 O.L.R. 434.

Punishment for Bigamy. — Bigamy is an indictable offence, punish-
able by seven years' imprisonment ; and, after a previous conviction, by
fourteen years* imprisonment. Code sec. 308.

Feigned Marriages. — Everyone is guilty of an indictable offence,
and liable to seven years' imprisonment, who procures a feigned
or pretended marriage between himself and any woman, or who know-
ingly aids or assists in procuring such feigned or pretended marriage.
Code sec. 309.

A person accused of an offence under this section shall not be con-
victed upon the evidence of one witness, unless such witness is cor-
roborated in some material particular by evidence implicating the
accused. Sec. 1002.

Polygamy.

(o) Practising or Contracting —

(1) Polygamy. Code see. 310.

(2) Conjugal union. Code sec. 310.

(3) Spiritual marriages. Code sec. 310.

(&) Cohabitation in conjugal union. Code sec. 310

(d) Assisting in compliance with form. Code sec. 310.

(e) Procuring form of contract. Code sec. 310.

An Indian who, according to the customs of his tribe, takes two
women at the same time as his wives, and cohabits with them, is
guilty of an offence under this section. R. v. "Bear's Shin Bone"
(1899), 3 Can. Cr. Cas. 329 (N.W.T.).

The mere fact of cohabitation between a man and a woman, each
of whom is married to another, will not sustain a conviction under this
section (formerly 53 Vict. (Can.) eh. 37, sec. 11), to come within the
terms of which there must be "some form of contract between the
parties which they might suppose to be binding on them, but which
the law was intended to prohibit," and the term "conjugal union"
in the statute has reference to a form of ceremony joining the parties,
a marriage of some sort before cohabiting with one another. The
Queen v. Labrie (1891), Montreal Law Reports, 7 Q.B. 211.

In R. V. Liston, 34 C.L.J. 546, Armour, C.J., held that adultery
is not indictable under sec. 310(&). But in R. v. Harris (1906), 11
Can. Cr. Cas. 254, it Was held by Mulvena, D.M. (Que.), that a man is
guilty of an offence under this sub-section who lives "in open, con-
tinuous adultery to the scandal of the public. ' ' It was not shewn in
this case that the accused had gone through any form of marriage with
the married woman he was cohabiting with, nor was it found as a fact
that he lived with her "in anyq kind of conjugal union," though there
was evidence from which this might perhaps have been found.

CHAP. XII.] Unlawful Solemnisation. 1020e

Unlawful Solemnization of Marriage. — Code sec. 311.

In Ontario. — The Mormon organization known as ' ' the Eecognized
Church of Jesus Christ of Latter Day Saints," was held in Ontario to
be a church and religious denomination within the meaning of the
Ontario Marriage Act, although not incorporated in Ontario ; and its
ordained ministers resident in Ontario are therefore competent to
solemnize marriages. R. v. Dickout, 24 O.R. 250.

Marriage Contrary to Law. — Code see. 312.

Certain persons met and professed to form themselves into an inde-
pendent church or congregation known as "The First Chinese Chris-
tian Church, Toronto," and appointed the defendant, one of their
numbers, the minister of the church. At a subsequent meeting he was
ordained by two eongregationalist ministers, not as a Congregationalist
minster, but as a minister of the new independent church. Held, that
he was not a minister, ordained or appointed according to the rites
and ceremonies of the churph or denomination to which he belonged,
within the meaning of R.S.O. (1897) ch. 162, sec. 2, sub-sec. 1 ; and the
above facts appearing upon his indictment and trial for solemnizing
or pretending to solemnize a marriage without lawful authority, con-
trary to sec. 311 of the Criminal Code, there was evidence upon which
he could be convicted ; and his conviction was affirmed. R. v. Brown
(1909), 17 0.L.R. 698.

( 1021 )

CHAPTER THE THIRTEENTH.

OF CRIMINAL LIBELS.

Sect. I. — Preliminary.

Apart from the subject of treason (not dealt with in this work) it is
criminal to utter words or publish writings or exhibit matters which are
(a) blasphemous, (b) seditious, (c) obscene, or (d) defamatory of indivi-
duals. The gist of the offence in the case of classes (a), (b) and (c) is
the mischief to religion or government, including the administration of
justice,or to public morals, which the publication or exhibition is calculated
to cause, and in case (d) the risk of causing a breach of the public peace.

These offences were in the sixth edition of this work treated together
under the head of libel and indictable slander. It has been found better
to relegate them to more appropriate titles, as all the offences except
defamatory libel may be by speech or act as well as by writing, print, &c.

As to blasphemous publications, see ante, p. 393.

As to sedition, see ante, p. 301.

As to indecent publications and exhibitions, see, fost, Vol. ii.
pp. 1875 et seq.

As to interference by invective, &c., with the administration of justice,
see ante. Book VII. Chapter II. p. 537.

Sect. II. — Defamatory Libel.

The publication of matter defamatory of any living private person {a)
or definite class of living persons (b), is an indictable misdemeanor at
common law, if effected by writing or print or by signs (c), effigies (d),
or pictures (e). Such matter is usually referred to as ' libel '(/). Words
spohen, however defamatory, are not the subject of indictment unless they
directly tend to a breach of the peace : e.g. by conveying a challenge to
fight (g), or are seditious (h), or blasphemous (i), or perhaps obscene (j),
or constitute an incitement to the commission of an indictable offence (k).

(a) As to libels on the King or public 64. Bract, lib. 3. o. 36. 3 Co. Inst. 174.

persons,«MJean«e,pp. 311, 313. As to libels 5 Co. Rep. 125. ILd. Raym. 416. 2 Salk.

on the dead, vide post, p. 1025. 417, 418. Libel may be said to be a

(6) R. V. Williams, 5 B. & Aid. 595, and technical word, deriving its meaning rather

see post, p. 1024. from its use than its etymology. ' There

3. 6, e.g. putting a gallows opposite a man's to the offence of libelling ; and we know

door, or burning him in effigy. Eyre v. the offence specifically by that name, as

Garlick, 42 J. P. 68. we know the offences of horse-stealing,

{d) Monson v. Tussauds, Ltd. [1894], forgery, &c., by the names which the law

1 Q.B. 71. has annexed to them.' R. v. Wilkes, 2

(/) A defamatory libel is termed ii6c/fes {g) R. v. Langley, 6Mod. 125, 2Ld. Raym.

famosus seu infamatoria scriptura, and has 1029. R. v. Bear, 2 Salk. 417, ante, p. 439.

been usually treated of as scandal, written {h) Ante, p. 301. (i) Ante, p. 393.

or expressed by symbols. Lamb. Sax. Law (;') Pos<, Vol.ii. p. 1875. (h) Ante, Tp. 203.

1022 Of Criminal Libels. [book ix.

One spouse cannot take criminal proceedings against the other for
defamatory libel (l), and communication by one spouse to another of
defamatory matter is not publication (m).

A defamatory libel which is actionable is also indictable, subject to the
power and inclination of juries to acquit where the nature of the libel
renders civil proceedings the appropriate remedy (n), and the disposition
of the Courts to discourage criminal prosecutions launched merely to
extract apologies or vindicate private character (o). But in certain cases,
e.g. in the case of libels on the dead, defamation may be indictable,
although it is not actionable (p).

Matter is defamatory if it tends to blacken the character of another
and thereby to expose him to public hatred, contempt, and
ridicule {q).

In Thorley v. Lord Kerry (r), Sir J. Mansfield, C. J., said : ' There is
no doubt that this is a libel for which the plaintiff in error might have been
indicted and punished, because, though the words impute no punishable
crimes, they contain that sort of imputation which is calculated to vilify
a man, and bring him, as the books say, into hatred, contempt, and
ridicule ; for all words of that description an indictment lies.'

As every person desires to appear agreeable in life, and must be highly
provoked by such ridiculous representations of him as tend to lessen him
in the esteem of the world, and take away his reputation, which to some
men is more dear than hfe itself ; it has been held that not only charges
of a flagrant nature, reflecting a moral (s) turpitude on the party, are
defamatory, but also such as set him in a discreditable (t), scurrilous,
ignominious, or ludicrous (u) light, whether expressed in printing or
writing, or by signs or pictures ; for these equally create ill blood, and
provoke the parties to acts of revenge and breaches of the peace (v).
In K. V. Cobbett (w), EUenborough, C.J., said : ' No man has a right to
render the person or abilities of another ridiculous, not only in publications
but if the peace and welfare of individuals, or of society, be interrupted,
or even exposed by types and figures, the act. by the law of England, is
a Ubel'

From the point of view of criminal law the gist of an indictment for
libel is its tendency to lead to a breach of the public peace {x).

{I) R. V. Mayor of London, 1 Q.B.D. (t) Bac. Abr. tit. 'Libel' (A. 2). Fi'ay v.

772. Fray, 34 L. J. C. P. 45- Villars v. Monsley,

(m) Wennhak v. Morgan, 20 Q.B.D. 635. 2 Wils. (K.B.) 403.

(n) Starkie on Libel, 150, 165, 550 (1st (u) Cooke «. Ward, 6 Bing. 409.

ed.) Holt on Libel, 215, 216. Bradley (v) Thus the sending to a young woman

V. Methuen, 2 Ford's MS. 78. This must of a letter containing a proposal that she

be understood, however, of cases where should surrender her chastity to the writer

the libel, from its nature and subject, was held to be publication of a defamatory

inflicts a private injury, and not of those hbel, which might reasonably tend to

cases in which the public only can be said provoke a breach of the peace. The letter

to be affected by the libel. was opened by the parents of the young

(o) E. V. The World, 13 Cox, 206, woman and was not seen by the young

Coekburn, C.J. woman herself. R. v. Adams, 22 Q.B.D.

(p) Vide post, p. 1025. 66. See also R. v. Holbrook, 4 Q.B.D. 42,

(g) 1 Hawk. c. 73, ss. 1, 2, 3, 7. Bac. 46, Lush, J.

Abr. tit. 'Libel' (A. 2). (w) Holt on Libel, 114, 115.

(r) 4 Taunt. 364. (x) 1 Hawk. c. 28, s. 3. R. v. Labouchere,

(s) e.g. a charge of ingratitude. Cox v. 12 Q.B.D. 320.
Lee, 38 L. J. Ex. 219.

CHAP, xm.] Defamatory Libel. 1023

Defamatory libel is ranked among criminal offences because of its
supposed tendency to raise angry passion, provoke revenge, and thus
endanger the pubUc peace (y).

A libel against an individual may consist in the exposure of some
personal deformity, the actual existence of which would only shew the
greater malice in the defendant ; and even if it contain charges of mis-
conduct founded on fact, the pubUcation wiU not be the less likely to
produce a violation of the public tranquillity, and it has been observed
that persons having a grievance ought to complain for the injury done to
them in the ordinary course of law, and not to avenge themselves by the
odious proceeding of a libel (z).

Upon these principles it has been held to be defamatory to write of a
man that he had the itch, and stunk of brimstone (a). And an information
was granted against the mayor of a town for sending to a nobleman a licence
to keep a public-house (b). An information was also granted for a publi-
cation reflecting upon a person who had been unsuccessful in a lawsuit (c) ;
and against the printer of a newspaper for pubhshing a ludicrous paragraph
giving an account of the marriage of a nobleman with an actress, and of
his appearing with her in the boxes with jewels, &c. (d). A defendant
was convicted for publishing in a review, matter tending to traduce, vilify,
and ridicule an officer of high rank in the Navy ; and to insinuate that he
wanted courage and veracity ; and to cause it to be beUeved that he was
of a conceited, obstinate, and incendiary disposition (e). And an infor-
mation was granted against a printer of a newspaper, for publishing a
paragraph representing the Bishop of Derry as a bankrupt (/). Where a
count alleged that the defendant published of the Duke of Brunswick the
following libel : ' Why should T. be surprised at anything Mrs. W. does ?
If she chooses to entertain the Duke of Brunswick, she does what very
few will do ; and she is of course at liberty to follow the bent of her own
inclining, by inviting all the expatriated foreigners who crowd our streets
to her table, if she thinks fit ' ; the Court of Exchequer Chamber held
that the matter stated was defamatory, as it might be understood in such
a sense as to be injurious to the prosecutor's character (g). But it was
held not to be criminal to circulate a handbill : ' B. 0., game and rabbit
destroyer, and his wife, the seller of the same in country or in town,' in

{y) R. V. Holbrook, 4 Q.B.D. 42, 46, a body of persons discharging public duties.

Lush, J. : and see Short and Mellor, (>own R. v. WilUams, 5 B. & Aid. 595.

Practice (2nd ed.), 153. (a) Villars v. Monsley, 2 Wils.(K.B.) 403.

(z) 1 Hawk. 0. 73, s. 6. Bac. Abr. (6) Mayor of Northampton's case, 1 Str.

tit. ' Libel 1 (A. 5). 4 Bl. Com. 150, 151. 2 422.

Starkie on Libel, 251, et seq. Holt (c) 2 Barnard. (K.B.) 84.

on Libel, 275, et seq. The King's Bench (d) R. v. Kinnersley, 1 W. Bl. 294. It

Division will not give leave to file a was sworn that the nobleman was a married

criminal information for libel unless the man ; and the Court said, that under such

prosecutor specifically denies the truth of circumstances the publication would have

the matters alleged against him. R. v. been a high offence even against a

Aunger, 12 Cox, 407. It is said, however, commoner, and that it was high time to

that this rule may be dispensed with, if stop such intermeddhng in private famihea.

the imputations of the libel are general and (e) R. v. SmoUet [1759], Holt on Libel,

indefinite, or if it is a charge against the 224.

prosecutor for language which he has held (/) Anonymous, Hil. T. 1812.

in Parliament. R. v. Haswell, 1 Doug. {g) Gregory v. R., 15 Q.B. 957.
387 : 4 Bl. Com. 151, note (6) : or against

1024 Of Criminal Libels. [book ix.

the absence of any allegation or proof that the words implied illegal or
improper destruction of game or rabbits {h).

Imputations on a man in respect of his trade or business, e.g. by
denying his honesty or solvency, are actionable and might in a strong
case be made the subject of indictment {i). But there does not seem to
be any instance of an indictment for disparaging the goods of a trader (/).

Defamation may be effected as well by description, circumlocution,
or insinuation as in express terms, and scandal conveyed by way of
allegory or irony amounts to a libel. As where a writing, in a taunting
manner, reckoning up several acts of public charity done by a person
said, ' You will not play the Jew, nor the hypocrite,' and then proceeded, in
a strain of ridicule, to insinuate that what the person did was owing to
his vainglory. Or where a publication, pretending to recommend to a
person the characters of several great men for his imitation, instead of
taking notice of what great men are generally esteemed famous for,
selected such qualities as their enemies accuse them of not possessing
(as by proposing such a one to be imitated for his courage who was known
to be a great statesman, but no soldier ; and another to be imitated for
his learning who was known to be a great general, but no scholar) ; such
a publication being as well understood to mean reproach to the parties
with the want of these qualities as if it had done so directly and expressly (k).
And upon the same ground, not only an allegory, but a publication in
hieroglyphics, or a rebus or anagram, which are still more difficult to be
understood, may be defamatory (I). So a man may be defamed by
asking questions ; for if a man insinuates a fact by asking a question,
meaning thereby to assert it, it is the same thing as if he asserted it in
terms (m).

A defamatory writing, expressing only one or two letters of a name,
in such a manner that from what goes before, and foUows after, it must
needs be understood to signify a particular person, in the plain, obvious,
and natural construction of the whole, and would be nonsense if strained
to any other meaning, is as much a libel as if it had expressed the whole
name at large (m).

Imputations on a Class.— An indictment lies for general imputations

(h) R. V. Yates, 12 Cox, 233. EllenboroUgh, C.J. And in R. v. Watson,

(i) See Odgers on Libel (4tli ed.), 32. 2 T. R. 206, BuUer, J., said : ' Upon ooca-

(?) Harman v. Delany, Barnard. (K.B.) sions of this sort I have never adopted any

289 : Fitzgib. 121 : 2 Str. 898. Western other rule than that which has been

Counties Manure Co. v. Lawes Chemical frequently repeated by Lord Mansfield to

Manure Co., L. R. 9 Ex. 218. White v. juries, desiring them to read the papers

Mellin [1895], A. C. 154. stated to be a libel as men of common

(k) 1 Hawk. c. 73, s. 4. Bao. Abr. tit. understanding, and say whether in their

' Libel ' (A. 3). minds it conveys the idea imputed.' See

{I) Holt on Libel, 235, 236. Woolnoth v. Meadows, 5 East, 463. 1

(ra) R. V. Gathercole, 2 Lew. 237, 255, Hawk. u. 73, s. 5. Be Raed v. Huggonson,

Alderson, B. 2 Atk. 470, Lord Hardwicke. In Bac.

(re) Formerly it was the practice to say Abr. tit. 'Libel' (A. 3), it is said (in the

that words were to be taken in the more marginal note) that if an application is

lenient sense ; but that doctrine is now made for an information in a ease of this

exploded ; they are not to be taken in the kind, some friend to the party complaining

more lenient or more severe sense, but in should, by affidavit, state the having read

the sense which fairly belongs to them, and the libel, and understanding and believino-

which they were intended to convey. it to mean the party. See Du Bost v.

R. V, Lambert and Perry, 2 Camp. 403, Beresford, 2 Camp. 512.

CHAP.xiir.] Defamatory Libel. 1025

on a body of men, though no individuals be pointed out, because such
writings have a tendency to inflame and disorder society, and are there-
fore within the cognisance of the law (o). And scandal published of
three or four persons is punishable on the complaint of one or more, or
all of them (p).

In R. V. Osborn (q), an information was prayed against the defendant
for publishing a paper containing an account of a murder committed
upon a Jewish woman and her child, by certain Jews lately arrived from
Portugal, and living near Broad Street, because the child was begotten
by a Christian (r). It was objected that no information should be granted
in this case, because it did not appear who in particular the persons
reflected on were (s). But the Court said, that admitting that an infor-
mation for a libel might be improper, yet the publication of this paper
was deservedly punishable on an information for a misdemeanor of the
highest kind ; such sort of advertisements necessarily tending to raise
tumults and disorders amongst the people, and inflame them with a univer-
sal spirit of barbarity against a whole body of men, as if guilty of crimes
scarcely practicable, and wholly incredible. It is enough to specify some
of the individuals affected by the libel ; and where it was objected that
the names of certain trustees, who were part of the body prosecuting,
were not mentioned. Lord Hardwicke observed, that though there were
authorities where, in cases of Hbel upon persons in their private capacities,
it had been held necessary that some particular person should be named,
this was never carried so far as to make it necessary that every person
injured by such libel should be specified (t).

Where a publication stated that, upon the death of Queen Caroline,
none of the bells of the several churches of Durham were tolled ; and
ascribed this omission to the clergy, and then proceeded to make some
severe observations on that body, a criminal information was
granted (u).

Imputations on the Dead. — There has been some controversy on the
question whether and how far an indictment will lie on a libel defamatory
of a dead person. Such a libel is not actionable (v). Coke, after speaking
of libels against private men and magistrates or public persons, says,
' although the private man or magistrate be dead at the time of the
making of the libel, yet it is punishable : for in the one case it stirs up
others of the same family blood or society to revenge or to break the
peace, and in the other the libeller traduces and slanders the state and

(o) R. V. Gatheroole, 2 Lew. 237. See (r) The affidavit set forth that several

Le Fanu v. Malcolmson, 1 H. L. 0. 637. persons therein mentioned, who were

Odgers on Libel (4th ed.), 427. Holt on recently arrived from Portugal, and lived

Libel, 237. in Broad Street, were attacked by multi-

(p) Holt on Libel, 237. In R. v. Benfield, tudes in several parts of the city, barbar-

2 Burr. 980, it was held that an information ously treated, and threatened with death,

lay against two for singing a libellous song in case they were found abroad any more,
on A. and B., which first abused A. and (s) R. v. Orme (3 Salk. 224; 1 Ld.

then B. And it was said that if the Eaym. 486) was cited,
defendants had sung separate stanzas, the (t) R. v. Griffin,ul Sess. Cas. 257. Holt

one reflecting on A. and the other on B., on Libel, 239.

the offence would still have been entire. («) R. v. Williams, 5 B. & Aid. 595.

See R. V. Jenour, 7 Mod. 400. No judgment was ever given in this case.

(q) 2 Barnard. (K.B.) 138, 166. Kel. (v) R. v. Topham, 4 T. R. 126.

(J.) 230, PI. 183.

VOL. I. 3 U

1026 Of Criminal Libels. [book ix.

government, which dies not ' (w). This dictum is extra-judicial and did
not go to the point in judgment in the case in which it is made {x), and
according to the latest decisions ' it must be some very unusual publication
to justify an indictment or information for aspersing the memory of the
dead ' (y). The decided cases on this subject are not momerous. In K.
V. Paine (2), the libel was on William III. who was living, and Queen
Mary II. who was dead. In E. v. Critchley {a), the case arose on a
statement made of Sir Charles Nicoll, deceased, who was father-in-law of
a Secretary of State that ' he changed his principles for a red ribbon and
voted for that pernicious project the Excise.' In R. v. Topham (6), the
libel imputed to a deceased peer ' unmanly vices and debaucheries.' In
that case it was held that an indictment for libel, reflecting on the memory
of a deceased person, cannot be supported, unless it state that it was
done with a design to bring contempt on^his family, or to stir up the
hatred of the King's subjects against his relations, and to induce them to
break the peace in vindicating the honour of the family.

In E. V. Hunt (c), the indictment was for publishing Byron's ' Vision
of Judgment,' which was alleged to contain imputations on King George
III., then deceased.

In E. V. Labouchere (c?), the Court refused to grant a criminal
information for statements defamatory of a deceased foreign nobleman.

In E. V. Ensor (e), on an indictment for newspaper libel on a political
opponent who had been dead for three years, which led to an assault on
the defendant by the sons of the deceased, Stephen, J., directed an
acquittal on the ground that the libel had no reference to any living
person. This ruKng in his view was inadequate and he later expressed
an opinion that in such a case the libel must be intended and not
merely calculated to provoke sorrowing relations (/).

Sect. III. — Trial.

By the Quarter Sessions Act, 1842 (5 & 6 Vict. c. 38), sect. 1, Courts
of Quarter Sessions for a county or borough have no jurisdiction to
try any person for composing, printing, or publishing a defamatory
libel.

By sect. 6 of the Newspaper Libel and Eegistration Act, 1881 (44 &
45 Vict. c. 60), ' Every libel {g) or alleged libel and every offence under
this Act shall be deemed to be an offence within the Vexatious Indictments
Act, 1859 (22 & 23 Vict. c. 17) ' Qi).

(w) De Uhellis famosis, 5 Co. Rep. 126 a, Italy the flesh of soldiers who had died in

a case in the Star Chamber, 3 Jao. 1. hospital or been killed in battle. The

{x) R. V. Topham, 4 T. B. 126, 128, application for the information was made

Kenyon, C.J. by a foreign nobleman resident abroad who

[y) R. V. Labouohera, 12 Q.B.D. 320, was a son of the deceased.
324, Coleridge, C.J. In this case the (e) 3 T. L. R. 366, Stephen, J.

earher authorities are discussed. (/) [1887], Steph. Dig. Or. Law (6th ed )

(z) Carthew, 405. 227 n.

(a) 4 T. R. 129, cit. (g) It is immaterial whether the hbel is

(h) 4 T. R. 126. published in a newspaper or not ; and the

(d) 12 Q.B.D. 320. The hbel imputed was phemous and seditious, as well as defama.
that the deceased was nearly hanged on a tory and obscene libels.

charge of supplying tp the JVepch ftrmy of (h) Post, Vol, ii, p. 1926.

CHAP. XIII.] Trial. 1027

The respective functions of judge and jury with respect to the trial
of libel are as follows : — ■

In criminal cases the judge is to define the crime, and the jury are to
find whether the party has committed that offence.

The Libel Act, 1792 (32 Geo. III. c. 60) (i), after reciting that ' doubts
have arisen whether on the trial of an indictment or information for the
making or pubUshing any libel where an issue or issues are joined between
the King and the defendant or defendants on the plea of not guilty
pleaded, it be competent to the jury empanelled to try the same to give
their verdict on the whole matter in issue,' enacts (s. 1) that ' on every
such trial, the jury sworn to try the issue may give a general verdict of
guilty or not guilty, upon the whole matter put in issue on such indictment
or information ; and shall not be required or directed, by the Court or
judge before whom such indictment or information shall be tried, to find
the defendant or defendants guilty, merely on the proof of the publication
by such defendant or defendants of the paper charged to be a libel, and
of the sense ascribed to the same in such indictment or information.'
Provided always (s. 2) that on every such trial ' the Court or judge before
whom such indictment or information shall be tried, shall, according to
their or his discretion, give their or his opinion and directions to the jury,
on the matter in issue between the King and the defendant or defendants,
in like manner as in other criminal cases ' (/).

In cases of libel, as in other cases of a criminal nature, it has been the
course for a judge first to give a legal definition of the offence, and then
to leave it to the jury to say, whether the facts necessary to constitute
that offence are proved to their satisfaction. Whether the particular
publication, the subject of inquiry, is calculated to injure the reputation
of another, by exposing him to hatred, contempt or ridicule, is a question
of fact for the jury to determine. The judge as a matter of advice to
them in deciding that question, may give his own opinion as to the
nature of the pubhcation, but is not bound to do so {k).

Sect. IV. — Punishment.
Common Law. — The judgment in cases of defamatory libel at common
law was in the discretion of the Court ; and usually consisted of fine,
imprisonment without hard labour, and finding sureties to keep the
peace Q). Judgment was given on each of four counts of an information
that the defendant be imprisoned on the first count ' for the space of two
months now next ensuing ' ; on the second count, ' for the further space of

(i) Generally known as Fox's Act. The find a special verdict, in their discretion,

Act in terms extends to all forms of libel as in other criminal cases. By s. 4,

and is not limited to defamation. The Act defendants found guilty may move in

is said to declare the common law. But arrest of judgment as before the passing

prior to its passing it had been in certain of the Act.

cases ruled that the only matters for the (Ic) Parmiter v. Coupland, uhi sup. Baylis

jury were publication and the truth of the v. Lawrence, 11 A. & E. 920. Paris v.

innuendoes. Parmiter u. Coupland, 6 M. & Levy, 9 C. B. (N. S.) 342. R. v. Burdett,

W. 105, Parke, B. Jenner v. A'Beokett, B. & Aid. 95 : I St. Tr. (N. S.) 1. Frayj).

L. R. 7 Q.B. 11 : 41 L. J. Q.B. 14. See Fray,17 C. B. (N.S.) 603 : 34 L. J. C. P.45.
ErsMne's speeches in the case of the Dean (I) 1 Hawk. o. 73, s. 21. Bac. Abr. tit.

of St. Asaph, Ridgway's Col. vol. i. pp. 'Libel,' C. R. i;. Middleton, Fort. 201 : 1

234, 264. Str. 177 : R. v. Dunn, 12 Q.B. 1026. As

(j) S. 3 provide!? that the jury may to the pillory, vide ante, p. 249.

3u2

1028 Of Criminal Libels. [book ix.

two months, to be computed from and after the end and expiration of his
imprisonment ' for the offence mentioned in the first count ; on the third
count, for the further space of two months, to be computed in like manner
from the end of the imprisonment on the second count ; and on the
fourth count, for the further space of two months, to be computed in
like manner from the end of the imprisonment on the third count. The
third count was adjudged on error to be insufficient : but it was held,
that the sentence on the fourth count was not thereby invalidated, and
that the imprisonment on it was to be computed from the end of the
imprisonment on the second count {m).

Statutory Punishments.— The Libel Act, 1843 (6 & 7 Vict. c. 96), now
regulates the punishment of persons publishing or threatening to publish
defamatory libels.

Sect. 3 (Threats to Publish) is dealt with under ' Eobbery and
Threats,' post. Vol. ii. p. 1158.

Sect. 4. ' If any person shall maliciously publish any defamatory
libel knowing the same to be false, every such person, being convicted
thereof, shall be liable to be imprisoned in the common gaol or house of
correction for any term not exceeding two years, and to pay such fine as
the Court shall award.'

Sect. 5. ' If any person shall maliciously publish any defamatory
libel, every such person, being convicted thereof, shall be liable to fine or
imprisonment or both, as the Court may award, such imprisonment not
to exceed the term of one year.'

The Court may also or alternatively put the offender under recogni-
sances to keep the peace and be of good behaviour, or deal with the case
under the Probation of Offenders Act, 1907 {n).

Sects. 4 and 5 do not create any new offence nor alter the nature of the
offence of defamatory libel as defined by the common law, but merely
limit the punishment for the common law offence in the two cases with
which they deal (o).

On an indictment for publishing a defamatory libel knowing it to be
false (s. 4), the defendant may be convicted of publishing a defamatory
libel without the scienter, sect. 5 (50).

Costs. — As to costs, see post, Vol. ii. pp. 2039, 2042.

Sect. V. — Indictment.

The only matter now essential to be stated in an indictment (5) for

defamatory libel are that the defendant unlawfully published of and

concerning (r) a named person (s) or a specified body of persons (t) certain

defamatory matter which must be set out according to its tenor (u), with

(m) Gregory v. R., 15 Q.B. 974. («) Ante,Tp. 1021. If it sufficiently appears

(«) Avte, p. 219. from the terms of the libel to whom it refers

[o) R. V. Munslow [1895], 1 Q.B. 768. the omission of the words of and ' concern-

Cf. R. V. Mabin [1901], 20 N. Z. L. R. 451. ing ' is not fatal. Gregory v R 15 0 B

(p) Boaleru. R.,21Q.B.D. 284. 957. . ■*• •

(?) For an example of a thoroughly («) Ante, p. 1024. An indictment seems

defective indictment, see R. v. Barraclough not to lie for continued defaming a person

ri906], 1 K.B. 201. to the jurors unknown. R. v Orme 1 Ld

(r) R. V. Marsden, 4 M. & S. 164. R. v. Raym. 486, 3 Salk. 224.
Sully, 12 J. P. 536. Clement v. Fisher, (u) Bradlaugh v. R., 3 O.B D 607 and

7B, &C. 459. see posf, Vol, ii. p 1881. '

CHAP. xiiL] Indictment. 1029

such averments of extrinsic facts {v) and innuendoes as may be necessary
to indicate its defamatory meaning and its reference to the person or class
defamed (w). In some of the older cases the words ' composed ' and
'printed' are added to 'published' {x) ; neither of these words is necessary,
the gist of the offence being publication and not the composition («/) or
printing.

It is usual to insert the words ' falsely and maliciously.' But ' falsely '
is certainly superfluous (z) and omission of the word ' maliciously,' if a
defect, is not covered by verdict {a). To justify punishment under
sect. 4 of the Libel Act, 1843 (&), it must be averred and proved that
the defendant knew the defamatory words to be false.

It is not essential even when the only publication intended to be
proved is to the person defamed to state that the words were intended
or calculated to cause a breach of the peace (c).

The proper conclusion is ' against the peace, &c.,' the provisions of
sects. 4-5 of the Libel Act, 1843 {d) not having affected the common law
definition of the offence and merely prescribing the punishment according
as the scienter is or is not proved (e).

The words alleged to be defamatory should, as already stated, be set out
according to their tenor (/), and with accuracy, and with care not to charge
as continuous statements, statements which were in fact separated by in-
tervening matter (gr). This care is necessary to avoid variance between
indictment and proof as to the words or sense and the risk that the Court
might be unable or unwilling to amend under 14 & 15 Vict. c. 100, s. 1 Qi).

Libel in Foreign Languages. — If the libel is in a. foreign language it is
necessary that it should be set forth in the indictment in the original
language, and also in an English translation, to prove the translation to
be correct {i).

Innuendoes. — Innuendoes are inserted to fix and point the defamatory
meaning of the words and their reference to the person said to be defamed,
and they may not add new matter (/).

It is the duty of a judge to say whether a publication is capahle of the
meaning ascribed to it by an innuendo ; but when the judge is satisfied
of that, it must be left to the jury to say whether the publication has the
meaning so ascribed to it (k).

{v) R. V. Yates, 12 Cox, 233. {g) See Tabart v. Tipper, 2 Camp. 352.

{w) Vide infra. ' The whole writing need not be set forth,

(x) See R. v. Hunt, 2 Camp. 583. R. v. but parts not set forth which qualify the

Williams, 2 Camp. 646, Lawrence, J. R. o. matter set forth may be given as evidence.

Knell, 1 Barnard. (K.B.) 305. 2 Salk. 417.

{y) Post, p. 1033. {h) As to the former strictness see R. v.

{z) R. V. Burke, 7 T. R. 4. R. v. Brooke, Beech, 1 Leach, 133. R. v. Hart, 1 Leach,

7 Cox, 251. And see Wyatt v. Gore, 145.

Holt (N. P.), 311 n. (i) Zenobio v. Axtell, 6 T. R. 162. R. v.

{a) R. V. Harvey, 2 B. & C. 257. R. v. Peltier, 28 St. Tr. 617. R. v. Goldstein, 3

Munslow [1895], 1 Q.B. 758. B. & B. 201.

(i) Vide ante, p. 1028. (j) R. v. Home, 20 St. Tr. 651. 2 Cowp.

authorities to the contrary are cited there & Aid. 95: 1 St. Tr. (N. S.) 1, Abbott, C.J.

and in Odgers on Libel (4th ed.), 670. And see Odgers on Libel (4th ed.), 110, 669.

(e) Ante, p. 1028. (h) Blagg v. Sturt, 10 Q.B. 899 : 16

{d) R. w. Munslow, m5j sup. L. J. Q.B. 39. Hunt v. Goodlake, 43

( / ) See R. V. Barraclough [1906], 1 K.B. L. J. C. P. 54. Mulligan v. Cole, L. R. 10

201. Q.B. 549 : 44 L. J. Q.B. 153.

1030 Of Criminal Libels. [book ix.

Where written or printed matter is clearly defamatory of a particular
person no statement of intrinsic circumstances, by way of inducement, is
necessary (Z). It is no objection, therefore, that words are not explained
by an innuendo where they are commonly enough understood in a
defamatory sense to warrant a jury in so applying them (m) ; and in
such a caseT, innuendoes improperly enlarging the sense may be rejected
as surplusage after verdict (n) ; for on motion in arrest of judgment, an
innuendo which is not warranted by the words themselves nor properly con-
nected with them by prefatory matter, may be rejected (o). But the case
would be different if the words were capable of two senses, and the
innuendo ascribed one meaning to them, and was good on the face of it (p).
If there be contained in the alleged libel matter which is cafohle of
receiving the interpretation put upon it by an innuendo, there is no fault
in the count for not having explanatory averments to fix and point the
libel. But generally if the words written or spoken cannot apply to the
individual, no previous averments or subsequent innuendoes can help to
give the words an application which they have not. ' Suppose the words
to be, " a murder was committed in A.'s house last night," no introduction
can warrant the innuendo " meaning that B. committed the said murder,"
nor would it be helped by the finding of the jury for the plaintiff. For
the Court must see that the words do not and cannot mean it, and would
arrest the judgment accordingly ' (q). But if an innuendo ascribes to
certain words a particular meaning which cannot be supported in evidence,
the innuendo, if well pleaded in form, cannot be repudiated on the trial,
so as to let in proof that the words have another meaning (r). If words
are laid to be uttered with intent to convey a particular meaning to
persons present, it must be proved that the party uttering them had that
meaning, and that they were so understood by the hearers (s).

Where a count alleged that the defendant, intending to defame the
Duke of Brunswick, published a libel containing divers false and malicious
matters and things of and concerning the said duke, that is to say : We
should think that no lady would admit to her society such a crack-brained
scamp as the Duke of Brunswick (meaning the said duke), the Court of
Exchequer Chamber held that these averments shewed suflGlciently with-
out more formal introduction, that the libel was of and concerning the
duke (t).

An information stated, that defendant, intending to excite hatred

{I) R. V. Tutohin, ]4 St. Tr. 1095 : 2 Ld. (*■) Per Bayley, B., ibid., citing Woolnoth

Raym. 1061. „. Meadows, 5 East, 470. See as to the

(m) Hoare v. Silverlook, 12 Q.B. 624. office and nature of an innuendo, 1 Stark.

See Homer v. Taunton, 5 H. & N. 661, on Libel, 418 et seq. Clegg v. Laffer, 10

where there was no innuendo to explain Bing. 250; 3 M. & S. 727. Day v. Robin-

' truck-master,' and it was held that it was son, 1 A. & E. 554, 4 N. & M. 884 : West

properly left to the jury to say whether it v. Smith, 1 Tyr. & Gr. 825. Kelly v.

was used in a defamatory sense, though no Partington, 5 B. & Ad. 645,
evidence was given to explain its meaning. (t) Gregory i>. R., 15 Q.B. 957. In the

(«) Harvey v. French, 2 Tyr. 585 : 1 Cr. same case 15 Q.B. 974, a count was held

& M. 11. bad which suggested that certain words

(o) Wilhams v. Stott, 3 Tyr. 688 ; 1 (&. meant that the Duke was suspected of a

& M. 675, Bayley, B. crime which would bring him into danger

(p) Barrett v. Long, 3 H. L. C. 395. of his life bv the Court of England on the

(?) Solomon v. Lawson, 8 Q.B. 823. ground it did not shew in what manner the

(r) Williams v. Stott, supra. life of the duke would be endangered.

CHAP, xiit] Verne. 1031

against the government &f the reahn, and to cause it to be believed that
divers subjects had been inhumanly killed by certain troops of the King,
published a libel of and concerning the government of this realm, and of
and concerning the said troops, which libel stated, that the defendant
saw with abhorrence, in the newspapers, the accounts of a transaction
at Manchester, and alleged that unarmed and unresisting men had been
inhumanly cut down by the dragoons (meaning the said troops), and then
commented strongly upon this being the use of a standing army, and
called upon the people to demand justice, &c. ; but it did not, in terms,
say, that the dragoons acted under the authority or orders of the govern-
ment. After conviction, a motion was made in arrest of judgment, on
the ground that it did not suf&ciently appear that the libel was written
of and concerning the government, nor of or concerning what troops it
was written : but the Court held, that it was obvious, from its whole
tenor and import, that it meant to cast imputations upon the government ;
that it was a libel to impute crime to any of the King's troops, though
it did not define what troops in particular were referred to ; and that the
innuendo of 'the said troops ' meant the undefined part of those troops (u).
Venue. — The libel must also be proved to have been published by the
accused, in the county laid in the indictment (v). By 7 Geo. IV. c. 64,
s. 12 {w), an offence begun in one county and completed in another is
triable in either, and at common law, if a man writes a libel in one county
and procures its publication in another, he is triable in the latter county (x).
So if a man writes a libel in London, and sends it by post addressed to a
person in Exeter, he is guilty of a publication in Exeter (y). And where
the defendant wrote a libel in Leicestershire, with intent to publish it in
Middlesex, and published it in Middlesex accordingly, and the information
against him was in Leicestershire, Abbott, C.J., and Holroyd and Best,
JJ., held the information right (z). From the same case it appears to
have been considered that delivering a libel sealed, in order that it may
be opened and published by a third person in a distant county, is a
publication in the county in which it is so delivered : and further, that
if delivering it open were essential, proof that the defendant wrote it in
county A., and that C. deUvered it unsealed to D. in county B., would be
prima facie evidence that the defendant delivered it open to C, in the
county A., though there be no evidence of C.'s having been in county A.
about the time ; or that application had been made to D. to know of
whom he received it. The information was for writing and publishing a
libel in the county of Leicester, and it was proved by the date of the letter
that the defendant wrote it in that county, and that A. delivered it to B,,
for publication in the county of Middlesex, it being then unsealed. A.
was not called as a witness ; and there was no evidence of his having been
in the county of Leicester, or how the libel came to him. The jury were
told that as A. had it open, they might presume that he received it open ;

(tt) R. V. Burdett, 1 St. Tr. (N. S.) 1 ; 4 (y) Id. ibid. 332.

B. & Aid. 314. (z) R. V. Burdett, 4 B. & Aid. 95. Bayley,

(v) Case of the Seven Bishops, 12 St. J., doubted. The decision of the majority

Tr. 354. has been accepted as good law. R. v.

{w) Ante, p. 20. Ellis [1899], 1 Q.B. 230, 236. Vide ante,

{X) 12 St. Tr. 331. p. 54.

1032 Of Criminal Libels. [book ix.

and that, as the defendant wrote it in the county of Leicester it might
be presumed that A. received it in that county ; and three judges held
against the opinion of Bayley, J., that this direction was proper ; and
they also held that if the delivering open could not be presumed, a
delivery sealed with a view to and for the purpose of publication was a
pubhcation ; and they thought there was sufficient ground for presuming
some delivery, either open or sealed, in the county of Leicester {a). It
appears from this case that the dating a libel at a particular place is
evidence of its having been written at that place [h). The postmarks
upon a letter are frima facie but not conclusive evidence that the letter
was in the office to which the postmarks belong at the date thereby
specified (c). If the envelopes have been destroyed fresh evidence of the
postmark is admissible {d). If a libellous letter is sent by the post,
addressed to a party at a place out of the county in which the venue is
laid in an indictment for the libel, yet, if it were first received by him
within that county, it is a sufficient publication to support the indict-
ment (e). Owning the signature to a libel is no evidence in what county
it was signed. This was held in the case of the Seven Bishops (/) ; but
additional evidence being afterwards given that the bishops applied to
the Lord President of the Council about delivering a petition to the King
and that they were admitted to the King for that purpose in Middlesex,
the case was left to the jury {g).

Sect. VI. — Evidence.

Evidence for the Prosecution.— Where no plea of justification has
been filed it is usually sufficient for the prosecution to prove pubhcation
of the defamatory libel by or at the instance of the defendant and within
the jurisdiction of the Court of trial and to produce and read the libel,
and to prove if need be any innuendoes or averments of intrinsic facts
necessary to shew the defamatory character of the publication and its
reference to the persons charged to be defamed, and also, if the libel is
framed on 6 & 7 Vict. c. 96, s. 4 Qi), that the defendant knew the
defamatory matter to be false. If the libel has merely been exhibited

(a) Ibid., and MS. Bayley, J. to know to whom letters should be directed,

(6) R. V. Burdett, 4 B. & Aid. 95. to which an answer was returned in the

R. V. Plumer [1814], R. & R. 264 & MS. two letters in the same handwriting

Bayle.y, J. R. v. Johnson, 7 East, 65; directed as mentioned, and having the

29 St. Tr. 103, 438. Fletcher v. Braddyl, Irish postmarks on the envelopes, which

2 Stark. N. P. 64 ; 2 Stark. Ev. 456 (g). two letters were proved to be in the hand-

The contrary was held by EUenborough, writing of the defendant, the previous

C.J., in R. V. Watson, 1 Camp. 215, where letter having been destroyed. It was held

he said that the postmark might have been that this was a sufficient ground for the

forged. But the decision is inconsistent Court to have the letters read ; and the

?;'^v *'P,'^^^^ ^■^o'^s ''ited. Stooken v. letters themselves containing expressions

i?T\\ * ^' ^^^' ^"Ig^™ O'^ ^^b^' of t^e writer, indicative of his having sent

(*™ ®J-)' 625. them to the pubUsher of the re<rister in

(i) R. V. Johnson, uhi svp. Middlesex for the purpose of publication,

R. V. Middleton, 1 Str. 77. In the case of jury to find a publication in Middlesex

R. V. Johnson, 7 East, 65 {ante, p. 52), the by the procurement of the defendant,

publisher of a public register received an (/) 12 St. Tr. 183.

anonymous letter, tendering certain political {g) Ibid,

information on Irish affairs, and requiring [%) Ante, p. 1028.

CHAP. XIII.]

Evidence.

1033

by the defendant, and he refuses on the trial to produce it, after
receiving ' notice to produce,' parol evidence may be given of its
contents {i).

Publication. — To constitute the offence it is essential to prove publi-
cation (j). The mere writing or composing of a defamatory libel by anyone
which is neither circulated or read to others, will not render him civilly,
nor, it would seem, criminally responsible ; nor will he be held to have
published the paper, if it be delivered out of his study by his own or his
servants' mistake {k), or pass out of his possession or control by accident,
or some cause independent of his volition.

It is not publication of a libel to take a copy which is not published (l).
But it is no defence to shew that the libel published was copied from
another publication even if published as a copy and the name of the
original author stated (m), but a person who has written a libel which is
afterwards published will be considered as the maker of it, unless he can
rebut the presumption of law by shewing another to be the author, or
prove the act to be innocent in himself (w). For as said by Holt, C.J.,
if a libel appears under a man's handwriting, and no other author is
known, he is taken in the mainour (o) and it turns the proof upon him ;
and if he cannot produce the composer, it is hard to find that he is not

(i) R. V. Watson, 2 T. R. 201, BuUer, J.
Att.-Gen. v. Lemarohant, ib. 201 n. R. v.
Boucher, 1 F. & F. 486. R. v. Barker, 1
F- & F. 296. And see Odgers on Libel
(4th ed.), 676, 677.

(j) It is insufficient to prove publication
by a husband to his wife or by a '.life to
her husband {ante, p. 1022).

(k) R. V. Paine, 5 Mod. 167. 'As regards
criminal libels there are weighty dicta to
the effect that composing is an offence
without publication.' In R. v. Burdett,
4 B. & Aid. 95, Lord Tenterden said: 'The
composition of a treasonable paper intended
for pvblication, has, on more than one
occasion, been held an overt act of high
treason, although the actual publication
had been intercepted or prevented, and I
have heard nothing on the present occasion
to convince my mind that one who com-
poses or writes a libel with intent to
defame, may not, under any circumstances,
be punished, if the libel be not published.'
Holroyd, J., said : ' Where a misdemeanor
has been committed by writing and pub-
lishing a libel, the writing of such a libel
so published is in my opinion criminal, and
liable to be punished by the law of England
as a misdemeanor, as well as the publishing
of it.' And again, ' The composing and
writing, ■with intent and for the purpose
above stated, of a libel proved to have
been published by the defendant, is in my
opinion of itself a misdemeanor, in what-
ever county the publishing of it took
place.' Upon the principle that an act
done, and a criminal intention joined to
that act, are sufficient to constitute a crime
it should seem that writing a libel with
intent to defame is a crime. C. S. G. It

is submitted that the dicta should be
limited to ' composing ' treasonable,
seditious or blasphemous writings, ante,
pp. 301, 393.

(?) Com. Dig. tit. ' Libel ' (B. 2). Lamb's
case, 9 Co. Rep. 59. But see R. v. Bear,
2 Salk. 417 ; 1 Lord Raym. 414.

(wi) De Crespigny v. Wellesley, 5 Bing.
392. See R. v. Newman, 1 E. & B. 268, 558,
post, p. 1050. M'Pherson v. Daniels, 10 B. &
C. 263. Watkin v. Hall, L. R. 3 Q.B. 396 ;
37 L. J. Q.B. 125. R. v. Sulhvan, 11 Cox,
44 (Ir.) (copy from a foreign newspaper).

(n) Bac. Abr. tit. ' Libel ' (B. 1). Lamb's
case, 9 Co. P^ep. 59. The writing a libel
may be an innocent act, e.y., in the clerk
who draws an indictment, or in the student
who takes notes of it. But in Maloney v.
Bartley, 3 Camp. 210, Wood, B., held, on
the trial of an action for libel, in the shape
of an extrajudicial affidavit sworn before a
magistrate, that a person who acted as a
magistrate's clerk was not bound to answer
whether by the defendant's orders he wrote
the affidavit, and delivered it to the
magistrate, as he might thereby criminate
himself.

(o) A man was taken with the mainour,
when he was taken with the thing stolen in
his possession, or, as it was termed in the
ancient indictments, captus cum manu
opere, and when so taken he might be
brought into Court, arraigned, and tried
without a grand jiory. 2 Hale, 148.
Some lords of manors liad jurisdiction to
t)?y such cases ; for I have the record of
such an indictment for horse stealing,
tried in the Court of Leek, Staffordshire
(35 Edw. I. ) See Pollock & Maitland, Hist.
Eng. Law, ii. 494, 577. C. S. G.

1034 Of Criminal Libels. [BooK iX.

the very man (p). Where the manuscript of a seditious libel was in the
handwriting of the defendant, and a printer had printed five hundred
copies from it, three hundred of which had been posted about Birmingham,
but there was no evidence to connect the defendant with the printing or
the posting, except the handwriting, it was held, that there was evidence
to go to the jury that it was published by the defendant {q).

Where, in an action for libel contained in a pamphlet, a witness proved
that the defendant gave her a pamphlet, and that she read parts of it,
and that she had lent it to several persons, and it was returned to her,
but she could not swear the copy produced was the same pamphlet the
defendant gave her, but it was an exact copy, if it was not the same, and
she believed it to be the same, it was held that this was sufficient evidence
to be left to the jury (?■).

The reading of a libel in the presence of another, without previous
knowledge of its being a libel, or the laughing at a libel read by another,
or the saying that such a libel is made by J. S., whether spoken with or
without malice, does not amount to a publication of the libel. And he
who repeats part of a libel in merriment, without any malice or purpose
of defamation, is not punishable (s). In an action for a libel contained in
a caricature print, where the witness stated, that having heard that the
defendant had a copy of this print, he went to his house and requested
liberty to see it, and that the defendant thereupon produced it, and pointed
out the figure of the plaintiff and the other persons it ridiculed. Lord
Ellenborough, C.J., ruled that this was not sufficient evidence of publi-
cation to support the action (i).

In criminal cases it is not essential as in civil cases of defama-
tory libel to prove publication to a person other than the person
defamed (m).

Proof that the libel was contained in a letter directed to the party,
and delivered into the party's hands, is sufficient proof of publication {v).
And delivering a libel sealed, in order that it maybe opened and published
by a third person in a distant county, is a publication [w). The production
of a letter containing a libel with the seal broken, and the postmark on
it, is prima facie evidence of publication {x).

All persons concerned in any capacity in the publication or circulation
of a defamatory libel or in causing or procuring its publication are liable

(p) R. I: Bear, 1 Ld. Raym. 414 ; 2 is made in the margin, whether a person

Salk. 417. who has a Ubellous writing in his possession,

(q) R. V. Lovett, 9 C. & P. 462, Littledale, and reads it to a private friend in his own

J. house, is thereby guilty of publishing it.

(r) Fryer v. Gatheroole, 4 Ex. 262. («) R. v. Adams, 22 Q.B.D. 66 : 58 L. J.

(s) Bac.Abr. tit. 'Libel' (B.2). This is M.C.I,
doubted in 1 Hawkins, P. C. o. 73, s. 14, (v) 1 Hawk. o. 73, s. 11. Bao. Abr. tit.

on the ground that jests of such a kind 'Libel' (B. 2), n. (a), Selw. (N. P.) 1050, n.

are not to be endured, and that the injury (9). Odgers on Libel (4th ed.), 438, 670.

to the reputation of the party grieved is R.i'.Brooke, 7 Cox, 251. Addressing a letter

no way lessened by the merriment of him to a wife containing reflections on her

who makes so Ught of it. As to reading a husband has been held publication and

libel in the hearing of others, knowing it to sufBoient to support an action. Wenman

be such, being a publication of it, see Bao. v. Ash, 13 C.B. 836 : 22 L. J. C. P. 190.
Abr. tit. ' Libel ' (B. 2). (w) R. v. Burdett, 4 B. & Aid. 95.

(t) Smith V. Wood, 3 Camp. 323. And (x) Warren v. Warren, 1 Cr. M. & R.-

see R. V. Paine, 5 Mod. 165, where a qu. 360. Shipley v. Todhunter, 7 C. & P. 680.'

CHAP. XIII.] Evidence. 1035

as principals (y) unless the part taken by them was lawful (z), or innocent,
or purely accidental {a).

It is usual in the indictment to charge the defendant with having
' published and caused or procured to be published ' the Hbel in
question (b).

According to the older books it is not material whether he who dis-
perses a libel knew anything of the contents or effects of it or not, for
that nothing would be more easy than to publish the most virulent papers
with the greatest security, if the concealing the purport of them from an
illiterate publisher would make him safe in dispersing them (c).

This opinion must be read subject to qualification, for a messenger
who cannot read, or the carrier of a sealed or closed parcel who has no
knowledge of the defamatory nature of its contents, cannot be held
criminally responsible for publication (d). The disseminator is not
liable unless conscious of the contents (e) or unless he has notice of their
nature putting him on inquiry (/). But printers can rarely rely on this
defence (g). Evidence is of course admissible to prove innocence of the
nature of the libel. Thus, where an action was brought against a porter
for a libel contained in a handbill, which he had delivered tied up in a
paper parcel, evidence was admitted that he delivered the parcel in the
course of his business without any knowledge of its contents (A).

In such cases the criminal responsibility rests on the person who
employs the innocent agent {i).

The defendant was indicted for causing to be published in a newspaper
a libel which told a story of the prosecutor, and added comments on
the story, giving it a ludicrous character. The editor of the newspaper
stated that the defendant had expressed a wish to him that he would
' shew up ' the prosecutor, and had told him the story. The witness
communicated it to a reporter for the paper, and the libel was substantially
what was so commimicated. Before the publication the defendant
remarked to the witness that the article had not yet appeared. After it
had appeared, the defendant told the witness that he had seen it, and
that he liked it very much. The witness had heard the story before the
defendant told it him. It was held, that on this evidence the jury might
find that the defendant authorised the publication of this particular

(y) 24 & 25 Vict. 0. 94, s. 8, ante, p. 138. tlie puMishera and negligently kept in

(z) e.g., by reason of absolute privilege, circulation by a library after receipt of the

post, p. 1041. publisher's notice.

(o) R. V. Munslow [1895], 1 Q.B. 758, {g) Lord Hardwicke said in Re Read and

765 : 64 L. J. M. C. 138. Wills, J., follow- Huggonson, 2 Atk. 472 : ' Though printing

ing Bmmens v. Pottle, 16 Q.B.D. 354. Of. papers and pamphlets is a trade by which

R. V. Lord Abingdon, 1 Esp. 226. persons get their livelihood, yet they must

(6) See Arch. Cr. PI. (23rd ed.) 1122. take care to use it with prudence and caution;

For other precedents see 2 Cox, App. for if they print anything that is libellous, it

XXIX., and Odgers on Libel (4th ed.), 752. is no excuse to say that the printer had

(c) Bac. Abr. tit. 'Libel' (B. 2). 1 Hawk. no knowledge of the contents, and was
u. 73, s. 10. entirely ignorant of its being hbellous.'

(d) Bmmens v. Pottle, 16 Q.B.D. 354. (h) Day v. Bream, 2 M. & Rob. 54.
R. V. Topham, 4 T. R. 127, 128, Kenyon, Patteson, J., said ' prima facie he was
C.J. R. V. Nutt, Fitz. 47. answerable, he had in fact delivered and

(e) Maloney v. Bartley, 3 Camp. 213. put into publication the hbel complained
Mcleod V. St. Aubyn [1899], A. C. 549. of, and was therefore called upon to shew

(/) Vizetellyw.Mudies.Ltd. [1900],2Q.B. his ignorance of the contents.'
170, a case of a book called in as libellous by (i) Vide ante, p. 104.

1036 Of Criminal Libels. [book ix.

libel, notwithstanding the comments added, as there were both a general
authority to publish, and an approval of the particular publication (j).

Where a reporter to a newspaper proved that he had given a written
statement to the editor of the paper, the contents of which had been
communicated to him by the defendant for the purpose of such publica-
tion, and that the newspaper then produced was exactly the same, with
the exception of some slight alterations, not affecting the sense ; it was
held, that what the reporter published, in consequence of what passed
with the defendant, might be considered as published by the defendant ;
but that the newspaper could not be read without producing the written
account delivered by the reporter to the editor (k).

In an action for libel the plaintiff complained of the publication in
certain newspapers of reports of the proceedings of a board of guardians,
containing defamatory statements concerning himself. At the meeting
at which the proceedings in question took place, reporters were present
in the discharge of their duty as representatives of newspapers. One of
the defendants was chairman of the meeting, and the other was present
and took part in the proceedings. The latter said that he hoped the
local press would take notice of ' this scandalous case,' and requested
the chairman to give an account of it. This he accordingly did, and in
the course of his statement said, ' I am glad gentlemen of the press are
in the room, and I hope they will take notice of it.' The other defendant
thereupon said, ' And so do I.' The reports complained of were after-
wards inserted in the newspapers, being somewhat condensed, but sub-
stantially correct, accounts of what had been said at the meeting. These
reports were set out in the declaration, and constituted the libels com-
plained of. The judge at the trial directed a verdict for the defendants, on
the ground that there was no evidence of a publication by the defendants
of these libels, to which direction the plaintiff excepted. Held (by
Keating, Montague Smith, and Hannen, JJ., diss. Byles and Mellor, JJ.),
that the direction was wrong, and that there was evidence for the jury (Z).

Where an information for libel stated that the prosecutor had received
certain anonymous letters, and that the defendant published a libellous
placard of and concerning those letters, and the placard asked, ' Were
you not warned that your character was at stake ? ' and the prosecutor
stated that he should not have understood the meaning of the placard

ij) R. V. Cooper, 8 Q.B. 533. Denman, to another to publish defamatory matter, of

C.J., said : ' If a man request another which, for the purpose, he gives him »

generally to write a libel, he must be statement, whether in full or in outline,

answerable for any libel written in pursuance and the agent publishes the matter,

of his reqiiest : he contributes to a mis- adhering to the sense and substance of it,

demeanor, and is therefore responsible as a although the language be to some extent

principal.' ' I have no doubt that a man his own, the man making the request is

who employs another generally to write a hable to an action as the publisher. If the

libel must take his chance of what appears, law were otherwise, it would, in many cases,

though something may be added which he throw a shield over those who are the real

did not state.' authors of Ubels, and who seek to defame

{k) Adams v. Kelly, Ry. & M. 157. others under what would then be the safe

(I) Parkes v. Prescott, L. R. 4 Ex. 169, shelter of intermediate agents. I make

179: 38 L. J. Ex. 105. Montague Smith, J., this observation oidy with reference to

in dehvering the judgment of the majority of the general consequences which would

the Court, said : ' In the result, I come to result from the arguments relied on to

the conclusion that, on principle it is correct sustain the defendant's contention.'
to hold that, where a man makes a request

CHAP, xiii] Evidence. ] 037

if he had not also seen the letters, and that he understood the passage in
the placard to allude to the letters, it was held that the letters were
admissible without proving who wrote or sent them, as the placard
referred to them, and would not be intelligible without them, and that
a defendant, who refers to other papers in his publication, must submit
to have them read as explanatory of such publication (m).

If the handwriting of the defamatory matter is in dispute it may be
compared with genuine writing of the defendant. See 28 & 29 Vict. c.
18, ss. 1, 8 {post, Vol. ii. p. 2150).

As to the admissibility of depositions taken under the Indictable
Offences Act, 1848 (11 & 12 Vict. c. 42), and the use of gazettes, procla-
mations, &c., in evidence, see post, Bk. xiii. c. iv. and p. 2120.

Malice and Intent. — It is not necessary to prove malice unless the
occasion is privileged or the defence of fair comment is raised («). In
such cases the evidence must go to shew express malice (o).

The criminal intention of the defendant will be matter of inference
from the nature of the publication. Where a libellous publication appears
unexplained by any evidence, the jury should judge from the overt act ;
and, where the publication contains a charge defamatory in its nature,
should from thence infer that. the intention was malicious (p). It is a
general rule that an act unlawful in itself, and injurious to another, is
considered in law to be done malo animo tov/ards the person injured ;
and this is all that is meant by a charge of malice in an indictment or
statement of claim for defamatory libel, which is introduced rather to
exclude the supposition that the publication may have been made on
some innocent occasion than for any other purpose (q), and is not essential
in an indictment (r). The intention may be collected from the libel,
imless the mode of publication, or other circumstances explain it ; and
the publisher must be presumed to intend what the publication is likely
to produce ; so that if it is likely to excite sedition, he must be presumed
to have intended that it should have that effect (s). PubHshing what is
a libel without excuse is indictable, though the publisher be free from
what in common parlance is called malice ; for defaming wilfully without
excuse is in law malicious. And even if it could be an excuse, <;hat the
publisher beheved what he published to be true, it is not so if he professes
to publish it from authority. A newspaper contained this paragraph :
' the malady under which his Majesty labours is of an alarming nature
[meaning insanity] ; it is from authority we speak." At the trial of the
indictment for this publication, the jury asked if a malicious intention
were necessary to constitute a libel ; to which Abbott, C. J., answered,
that a man must have intended to do what his act was calculated to effect ;
and the jury found the defendant guilty. Upon a motion for a new trial
it was admitted that the paragraph was libellous, but it was urged that
malice was essential to make the defendant criminal ; that he believed

(m) R. V. Slaney, 5 0. & P. 213, Tenter- Stuart v. Lovel, 2 Stark. (N. P.) 93.

den, C.J. (?) Duncan v. Thwaite.s, 3 B. & C. 584,

(«.) See Odgers on Libel (4th ed.), 677. 585, Tenterden, C.J.

(o) Vide -post, pp. 1039, 1047. (r) B. v. Munslow, anU. p. 1029.

(p) B. V. Lord Abingdon, 1 Esp. 228, (s) B. v. Burdett, 4 B. & Aid. 95. R. v.

Kenyon, C.J. And see B. v. Topham, 4 Lovett, 9 C. & P. 462, Littledale, J.
T. B. 127. B. V. Woodfall, 5 Burr. 2667.

1038 Of Criminal Libels. [book ix.

the King to have been so afflicted, and that the answer to the question
by the jury was incorrect. But the Court thought otherwise, as the
defendant must know whether he spoke from authority, and could have
proved it ; and if mahce were a question of fact, a man must be presumed
to have intended to produce the effect which his act will naturally produce ;
and libelling without excuse is legal malice (t). A person who publishes
matter injurious to the character of another must be considered, in point
of law, to have intended the consequences resulting from that act (u),
for every man must be presumed to intend the natiiral and ordinary
consequences of his own act (v). The judge, therefore, ought not to
leave it as a question to the jury, whether the defendant intended to
injure the person libelled, but whether the tendency of the publication
was injurious to such person (w). In some cases, however, the paper or
other matter may be libellous only with reference to circumstances
which should be laid before the jury by evidence.

In order to shew the existence of actual malice in the mind of the
writer of a libel, other libels by him, whether written previously or
subsequently, are admissible in evidence (x). Where the House of Lords
asked the judges ' in an action for defamatory libel, when the plea of the
general issue is pleaded, and also a plea under 6 & 7 Vict. c. 96, s. 1, denying
actual malice, and stating the publication of an apology set forth in the
plea, is it admissible upon a trial for the plaintifi to give evidence of other
publications by the defendant (some of them more than six years before
the publication complained of) of and concerning the plaintiff, in order to
prove maUce against the defendant ? ' the judges answered, ' We are all
of opinion that, under such a plea, the publication of the previous libels
on the plaintiff by the defendant is admissible evidence to shew that the
defendant wrote the libel in question with actual malice against the
plaintifE. A long practice of libelling the plaintiff may shew in the most
satisfactory manner that the defendant was actuated by malice in the
particular publication, and that it did not take place through carelessness
or inadvertence ; and the more the evidence approaches to the proof of
a systematic practice, the more convincing it is. The circumstance that
the other libels are more or less frequent, or more or less remote from
the time of the publication of that in question, merely affects the weight,
not the admissibility of the evidence.' And the House of Lords held
accordingly (y).

Where an information for libel alleged that a person unknown
murdered E. G-., and that one H. had been arrested on the charge of
committing the murder and discharged, and the libel set out spoke of
' the acquittal of H. for the murder of E. G.;' it was held that the
inducement was proved by evidence that a person had been murdered
and that H. had been charged with the murder and afterwards discharged,
and that at the inquest held on the body witnesses called the deceased

(<) E. V. Harvey, 2 B. & C. 257, 2 St. Tr. {w) Haire v. Wikon, supra.

(N. S.) 1. . (x) Pearson v. Lemaitre, 5 M. & G. 700.

(«) Fisher v. Qement, 10 B. & 0. 472, Darby v. Ouseley, 1 H. & N. 1. Stuart v

Tenterden, C.J. Lovel, 2 Stark. {N. P.) 93.

{v) Haire v. Wilson, 9 B. & C. 643, (y) Barrett v. Long, 3 H. L. C. 395. See

Tenterden, C,J. HemmingsV Gasson, E. B. & E. 346

CHAP. XIII.] Matters of Defence. 1039

by the name of E. G-., and that this last fact might be proved by the
coroner, and that he might for this purpose use an inquisition drawn up
on paper (z).

Where a declaration for libel set out the following passage : ' We
would suggest to the ex-Duke of Brunswick the propriety of withdrawing
into his own natural and sinister obscurity ' (meaning thereby to insinuate
that the plaintiff was guilty of unnatural practices), Lord Campbell, C.J.,
refused to permit a witness to be asked if he had read the hbel, and what
he understood by the word ' natural ' printed in italics, as it was for the
jury to form their own opinion as to what was meant by the word so
printed (a).

In an action for libel it appeared that the plaintiff, an attorney, was
employed by one N. to bring an action against an executor ; and that
the defendant who was employed to adjust the executor's accounts,
finding that an action was about to be commenced against the executor,
wrote a letter to N. blaming him for allowing the plaintiff to sue, and
containing this passage, ' If you will be misled by an attorney, who only
considers his own interest, you will have to repent it ; yoii may think
when you have once ordered your attorney to write to Mr. G., he would
not do any more without your further orders ; but if you once set him
about it, he will go any length without further orders.' It was held that
the question whether this letter applied to the plaintiff individually, or
to the profession at large, was properly left to the jury (6).

Sect, VII. — Matters of Defence.

The defences to an indictment for defamatory libel are : (1) that the
words were not published by the defendant ; (2) that they do not refer
to the person of whom they are alleged to be pubUshed ; (3) that they
are not defamatory ; (4) that if published they are (a) absolutely
privileged (c), or (b) conditionally privileged and published without
express malice (d) ; (5) that if published they are in the nature of fair
comment or criticism (e) ; (6) that they are true in substance and in fact
and published for the public benefit (/). All these defences except the
last may be set up under a plea of not guilty. The last must be set up
by special plea. Under the plea of not guilty the defendant is entitled
to prove that there was no publication or that he was not responsible iov
it, and to shew that the alleged libel does not relate to or does not defame
the person to whom it is alleged to refer, and to prove privilege absolute
or qualified, or fair comment.

Publication.—' The publication of a libel when prosecuted as a criminal
offence was at common law treated upon an exceptional principle and
with exceptional severity (g). The maxim " respondeat superior," which,
with rare exeeptions founded on reasons not applicable to libel, and which

(z) R. V. Gregory, 8 Q.B. 508. (/) Post, p. 1057.

(a) Duke of Brunswick v. Harmer, 3 0. & (g) Libel was thus an exception from the

K. 10. ' distinction between the authority which

(6) Godson v. Home, 1 B. & B. 7, will make a man liable criminally and that

id) Post, p. 1047. acts of another.' Parkes v. Prescott, L. R.

(e) Post, p. 105S. 4 Ex. 169 : 38 L. J. Ex. 105, Byles, J.

1040 Of Criminal Libels. [book ix,

1 will presently notice Qi), pertains to civil liability only, was applied to
an indictment for libel, and tbe proprietor of a newspaper in whicli a
libellous article had been inserted was held to be criminally as well as
civilly responsible for it, though he had never authorised it nor had
anything to do with its insertion and whether the editor had inserted it
by negligence or wilfully ' (^').

In accordance with this rule, proof of the purchase of a book or paper
containing defamatory matter, in a bookseller's shop, was held prima facie
evidence of publication by the master, although it did not appear that
he knew of any such book being there, or what the contents thereof were,
and though he was not upon the premises, and had been kept away for a
long time by illness ; the Court would not presume that it was obtained
and sold there by a stranger, and held that the master must, if he sug-
gested anything of this kind in his excuse, prove it (/). So the proprietor of
a newspaper was held answerable, criminally as well as civilly, for the acts
of his servants in the publication of a libel, although it could be shewn that
such publication was without the privity of the proprietor {k) ; for a
person who derives profit from, and who furnishes means for, carrjang
on the concern, and entrusts the conduct of the publication to one whom
he selects, and in whom he confides, was presumed to cause to be published
what actually appeared, and ought to be answerable, although it could
not be shewn that he was individually concerned in the particular publi-
cation (?) ; and these were acts done in the course of the trade or business
carried on by the proprietor.

But there were cases in which the presumption arising from the pro-
prietorship of a paper might be rebutted by evidence in exculpation or
contradictory (m). Thus in an action for a libel, where it appeared upon
the evidence that the defendant, a tradesman, was accustomed to employ
his daughter to write his bills and letters ; that a customer, to whom a bill
written by the daughter had been sent by the daughter, sent it back on the
ground of the charge being too high, and that the bill was afterwards
returned to the customer, inclosed in a letter also written by the defend-
ant's datighter, and being a libel upon the plaintiff, who had inspected
and reduced the bill for the customer ; it was held that this was
not sufficient evidence to go to a jury, either of command, authority,
adoption, or recognition by the defendant {n).

The rigour of the common law was mitigated by sect. 7 of the Libel
Act, 1843 (6 & 7 Vict. c. 96), which enacts that ' Whensoever, upon the

(K) See R. v. Stephens, L. B. 1 Q. B. 702 (h) R. v. Walter, 3 Esp. 21. R. v. Dod,

(public nuisance). 2 Sess. Gas. 33, pi. 38. 1 Hawk. o. 73, s. 10.

(»■) R. V. Holbrook, 4 Q.B.D. 42, 46, Woodfall's case. Essay on Libels, p. 18.

Lush, J. See R. v. Walter [1808], 3 Esp. Salmon's case, K.B. Hil. 1777.

21. Colbourn v. Patmore [1834], 1 Or. (I) R. v. Gutoh, M. & M. 433, Tenterden,

M. & R. 73, where Alderson, B., said, C.J.

' A master is presumed to authorise the (m) R. v. Gutch, M. & M. 433, Tenterden,

insertion of a libel.' C.J., and see E,. v. Almon, 5 Burr. 2686.

(j) Bac. Abr. tit. ' Libel ' (B. 2). R. v. (n) Harding v. Greening, 8 Taunt. 42.

Nutt, Fitzgib. 47 : 1 Barnard. (K.B.) 306 ; It was also held in this case that the

2 Sess. Gas. 33, pi. 38. And see R. v. daughter could not be compelled to prove
Almon, 5 Burr. 2686, relating to Junius' by whose direction the letter was written,
letters which were published in a magazine The answer would tend to flx herself with
bought at the defendant's shop and pur- the crime of writing it.

porting to be 'printed for him.'

OHAP.xiiL] Matters of Defence. 1041

trial of any indictment or information for the publication of a libel,
under the plea of not guilty, evidence shall have been given which shall
establish a presumptive case of publication against the defendant by the
act of any other person by his authority, it shall be competent to such
defendant to prove that such publication was made without his authority,
consent, or knowledge, and that the said publication did not arise from
want of due care or caution on his part ' (o).

This section is not limited to newspapers. ' It appUes to any printed
or written slander, whether contained in a newspaper, book, bill, or
letter. What it deals with is the libel, nothing more' {f). Nor does
it say what is the effect of proving the negative : ' but there can be as
little doubt that it means it to be an entire defence entitling the defendant
to a verdict and not merely to a mitigation of punishment ' {q). The
effect of the section as regards newspapers is to make the existence of an
authority by the proprietor to the editor to publish libels no longer a
presumption of law, but a question of fact. Under the former law the only
question of fact was whether the proprietor authorised the publication of
the newspaper ; under the section it is whether he authorised the publica-
tion of the particular libel. Though production of the newspaper con-
taining the libel with proof that he is owner raises a frima facie case of
responsibility, he may under sect. 7 displace this case by appropriate
evidence, and the jury are to be directed that criminal intention is not to
be presumed, and that the general authority to an editor to conduct a
newspaper is not per se evidence that the owner authorised or consented to
the publication by the editor of a libel in the paper (r).

It is not open to the defendant to prove that a paper similar to that, for
the publication of which he is prosecuted, was published on a former
occasion by other persons, who have never been prosecuted for it (s).
Where the alleged Ubel was contained in a newspaper, it was held that
the defendant had a right to have read in evidence any extract from the
same paper, connected with the subject of the passage charged as
libellous, although disjointed from it by extraneous matter, and printed
in a different character {t). This rule is of general application so
far as the context or other matter in the same publication qualifies or
explains the matter charged as defamatory.

1. Absolute Privilege.

Petitions to the King. — A petition to the King to be relieved from
doing what the King has directed the party to do, if made bona fide and in
respectful terms, is not punishable, though it caU in question the legality
of the King's direction. James II. published a declaration of liberty of
conscience and worship to all his subjects, dispensing with the oaths and
tests prescribed by statutes of Charles II. (25 Car. II. c. 2, and 30 Car. II.
St. 2) (m), and directed that it should be read two days in every chiirch

(o) The section is not limited to defam- {r) Id. ibid,

atory libels. R. v. Bradlaugh, 15 Cox, 217. [s] R. v. Holt, 5 T. R. 436.

R. V. Ramsay, 15 Cox, 231. Vide ante, p. (t) R. v. Lambert, 2 Camp. 398; 31 St.

310. Tr. 335.

[p) R. V. IJolbrook, 4 Q.B.D. 42, 48 : (u) The first of these Acts was repealed

47 L. J. Q.B. 35, Lush, J. in 1863, the second in 1866 (29 & 30 Vict.

(q) Id. ibid. c. 19, s. 6).

VOL. I.

3 X

X042 Of Criminal Libels. [book ix.

and chapel in tlie realm, and that the bishops should distribute it in their
dioceses that it might be so read. The Archbishop of Canterbury and
six bishops presented a petition to the King praying that he would not
insist upon their distributing and reading it, principally because it was
founded on such a dispensing power as had often been declared illegal
in Parliament, and that they could not in prudence, honour, or conscience,
so far make themselves parties to it as to distribute and publish it. This
petition was treated as a libel : they were taken up and tried for it. The
publication was proved ; and Wright, C.J., and Allibone, J., thought it
a libel : but HoUoway and Powell, JJ., thought otherwise, there not
being an ill intention of sedition in the bishops, and the object of their
petition being to free themselves from blame in not complying with the
King's command («).

Statements made in a petition to Parliament or to a committee {w)
of either House are absolutely privileged (x).

Proceedings in Parliament. — The members of the two Houses of
Parliament, by reason of their privilege [y), are not answerable in law
for any personal reflections on individuals contained in speeches in their
respective Houses ; for policy requires that those who are by the consti-
tution appointed to provide for the safety and welfare of the public,
should, in the execution of their high functions, be wholly uninfluenced
by private considerations [z).

The same privilege attaches to evidence given before com-
mittees (a). This form of privilege is limited to what is published in
Parliament, and does not apply to republication outside (z), except
perhaps to hona fide publication by a member for the information of
his constituents (b).

Reports of Proceedings in Parliament. — The publication of a report
of a debate in either House of Parliament is not absolutely privileged :
but if it be accurate the publisher is not responsible for defamatory
statements made in the course of the debate so reported and published (c),
or for the publication of articles fairly commenting upon the debate
so reported and published {d).

(«) Case of the Seven Bishops, 12 St. Tr. further declared in the Bill of Bights,

183. Hare v. Mellers, 3 Leon. 138, 163. 1 Will. & M. st. 2, c. 2. See Dillon v.

{w) InLakew.Kingfl668],lWms.Saund. Balfour, 20 L. R. Ir. 600. Fielding v.

131 a, it was held that the printing of a false Thomas [1896], A. C. 600, 612.

and scandalous petition to a committee of (z) See Holt on Libel, 190. 1 Starkie on

the House of Commons and a delivery of Libel, 239. Odgers on Libel (4th ed.), 219.

copies to the members of the committee was R. v. Lord Abingdon, 1 Esp. 226. R. v.

justifiable (qu. absolutely privileged), Creevy, 1 M. & S. 273.

because it was in the order and course of (a) 'Goffin v. Donnelly, 6 Q.B.D. 307.

proceedings in Parliament. Cf. Kane v. (6) Wasonw. Walter, L. R. 4 Q.B. 95.

Mulvany, Ir. Rep. 2 C. L. 402. In R. v. (c) Davison v. Duncan, 7 E. & B. 233.

Sahsbury, 1 Ld. Raym. 341, it was said {d] Wason v. Walter, L. R. 4 Q.B.

to be indictable to publish a scandalous 95 ; 38 L. J. Q.B. 34, et per cur., ' Our

petition to the House of Lords. judgment will in no way interfere with

(x) R. V. Creevey, 1 M. & S. 273, 278, the decisions that the pubhcation of

EUenborough, C.J. See Wason v. Walter, a single speech for the purpose or

L. R. 4 Q.B. 73. with the efiect of injuring an individual

(y) By 4 Hen. VIIL c. 3 (pro Ricardo will be unlawful, as was held in the

Strode), members of Parliament are pro- cases of R. v. Lord Abingdon, 1 Esp. 225,

tected from all charges against them for and R. v. Creevey, 1 M. & S. 273. At the

anything said in either House ; and this is same time it may be as well to observe

CHAP. XIII.] Matters of Defence. 1043

This privilege is extended to the publication in newspapers in the
case of fair and accurate reports of the proceedings of a select committee
of either House unless published maliciously (e).

This privilege will be destroyed by proof of express malice (/).

Parliamentary Publications. — The Parliamentary Papers Act, 1840
(3 <fe 4 Vict. c. 9) (g), after reciting, ' whereas it is essential to the due and
effectual exercise and discharge of the functions and duties of Parliament,
and to the promotion of wise legislation, that no obstructions or impedi-
ments should exist to the publication of such of the reports, papers, votes,
or proceedings of either House of Parliament as such House of Parliament
may deem fit or necessary to be published : And whereas obstructions
or impediments to such publication have arisen, and hereafter may arise,
by means of civil or criminal proceedings being taken against persons
employed by or acting under the authority of the Houses of Parliament,
or one of them, in the publication of such reports, papers, votes, or pro-
ceedings ; by reason and for remedy whereof it is expedient that more
speedy protection should be afforded to all persons acting under the
authority aforesaid, and that all such civil or criminal proceedings should
be summarily put an end to and determined in manner hereinafter
mentioned : ' enacts (sect. 1) that ' it shall and may be lawful for any
person or persons who now is or are, or hereafter shall be, a defendant or
defendants in any civil or criminal proceeding commenced or prosecuted
in any manner soever, for or on account or in respect of the publication of
any such report, paper, votes, or proceedings by such person or persons,
or by his, her, or their servant or servants, by or under the authority of

that we are disposed to agree with what was with an honest belief in their justice ;

said in Davison v. Dunoan, 7 B. & B. 232, but that this was not enough, inasmuch as

as to such a speech being privileged if such belief might originate in the blindness

bona fide published by a member for the of party zeal, or in personal or political

information of his constituents. But aversion, that a person taking upon himself

whatever would deprive a report of the publicly to criticise and to condemn the

proceedings in a Court of justice of immu- conduct or motives of another must bring

nity will equally apply to a report of pro- to the task not only an honest sense of

ceedings in Parliament. We pass on to justice, but also a reasonable degree of

the second branch of this rule, which has judgment and moderation, so that the

reference to alleged misdirection in respect result may be what a jury shall deem under

of the second count of the declaration, the circumstances of the case a fair and

which is formded on the article in the legitimate criticism on the conduct and

Times, commenting on the debate in the motives of the party who is the object of

House of Lords ; and the conduct of the censure. See Henwood v. Harrison, L. R.

plaintiff in preferring the petition which 7 C.P. 606 ; 41 L. J. C.P. 206.
gave ^'ise to it. We are of opinion that the (e) 51 & 52 Vict. c. 64, s. 4, post, p. 1049.

direction given to the jury was perfectly See R. v. Wright, 2 T. R. 293. Kane v.

correct. The publication of the debate Mulvany, Ir. Rep. 2 C. L. 402.
having been justifiable, the jury were (/) Wason v. Walter, L. R. 4. Q.B. 73.

properly told that the subject was, for the {g) This Act was passed in consequence

reasons we have already adverted to, pre- of the decision in Stookdale v. Hansard, 9

eminently one of public interest, and there- A. & E. 1. See Wason v. Walter, ubi sup.,

fore one on which public comment and Cookburn, C.J. ; Henwood v. Harrison,

observation might properly be made ; and L. R. 7 C.P. 606, WUles, J. By s. 28 of

that consequently the occasion was privi- the Unlawful Societies Act, 1799 (39 Geo.

leged in the absence of malice. As to the III. c. 79, post, p. 1062), nothing in that

latter, the jury were told that they must be Act contained shall extend or be construed

satisfied that the article was an honest and to extend to any papers printed by the

fair comment on the facts ; in other words, authority and for the use of either House

that, in the first place, they must be satis- of ParUament. See Burr v. Smith [1909],

'fied that the comments had been made 2 K. B. 306.

3x2

JQ4.4 Of Criminal Libels. [BOOK ix.

either House of Parliament, to bring before the Court in which such
proceeding shall have been or shall be so commenced or prosecuted, or
before any judge of the same (if one of the superior Courts of "Westminster),
first giving twenty-four hours' notice of his intention so to do to the
prosecutor or plaintiff in such proceeding, a certificate under the hand of
the Lord High Chancellor of Great Britain, or the Lord Keeper of the
Great Seal, or of the Speaker of the House of Lords, for the time being,
or of the Clerk of the Parliaments, or of the Speaker of the House of
Commons, or of the Clerk of the same House, stating that the report,
paper, votes, or proceedings, as the case may be, in respect whereof such
civil or criminal proceeding shall have been commenced or prosecuted,
was pubhshed by such person or persons, or by his, her, or their servant
or servants, by order or under the authority of the House of Lords or of
the House of Commons, as the case may be, together with an af&davit
verifying such certificate ; and such court or judge shall thereupon
immediately stay such civil or criminal proceeding, and the same, and
every writ or process issued therein, shall be and shall be deemed and
taken to be finally put an end to, determined and superseded by virtue
of this Act ' Qi).

By sect. 2, ' In case of any civil or criminal proceeding hereafter to be
commenced or prosecuted for or on account or in respect of the publication
of any copy of such report, paper, votes, or proceedings, it shall be lawful
for the defendant or defendants at any stage of the proceedings to lay
before the Court or judge such report, paper, votes, or proceedings, and
such copy, with an affidavit verifying such report, paper, votes or pro-
ceedings, and the correctness (M), of such copy, and the court or judge
shall immediately stay such civil or criminal proceeding, and the same, and
every writ or process issued therein, shall be and shall be deemed and
taken to be finally put an end to, determined, and superseded by virtue
of this Act.'

By sect. 3, ' It shall be lawful in any civil or criminal proceeding to be
commenced or prosecuted for printing any extract from or an abstract of
such report, paper, votes, or proceedings, to give in evidence under the
general issue such report, paper, votes, or proceedings, and to shew that
such extract or abstract was pubhshed hona fide and without malice ;
and if such shall be the opinion of the jury a verdict of not guilty shall
be entered for the defendant or defendants ' {i).

By sect. 4, ' Nothing herein contained shall be deemed or taken, or
held or construed, directly or indirectly, by implication or otherwise, to
affect the privileges of Parliament in any manner whatsoever.'

Judicial Proceedings. — A defamatory statement made on oath or
otherwise in the course o/ a judicial proceeding before a Court of competent
jurisdiction cannot be made the subject of criminal proceedings for libel (;').

(Ji) This section makes It imperative upon extracts from a Parliamentary paper

the Court to stay proceedings. Stookdale published as a blue book, see Mangeua v.

V. Hansard, 11 A. & E. 297. Mangena v. Edward Lloyd, Ltd. [1908], 24 T. L. R.

Wright [1909], 25 T. L. R. 534. 610: [1909], 26 T. L. R. 10. Same v.

(Tih) As to incorrect extracts, see Reis v. Wright [1909], 25 T. L. R.

Perry, 64 L. J. Q.B. 566. (?) MoCabe v. Joynt [1901], 2 Ir. Rep.

(i) As to the extent to which this 115, 117.
section protects bona fide publication of

CHAP. XIII.] Matters of Defence. 1045

It is immaterial. whether the statement is made by a person sitting
in a judicial capacity {Ic), or by jurors if), advocate {m), party (n), or
witness (o), and the privilege extends to proceedings to swear articles of
the peace or ex parte applications to a court of justice (50).

The privilege extends to the pleadings and documents created or used
for the purpose of the proceedings. Thus where the defendant, in an
affidavit filed in Court, said that the plaintiff in a former affidavit against
the defendant had sworn falsely, the Court held that this was not libellous ;
for in every dispute in a court of justice, where one by affidavit charges
a thing" and the other denies it, the charges must be contradictory, and
there must be affirmation of falsehood {q).

And the calendars of prisoners for trial at assizes or quarter sessions,
and the cause lists are within the privilege (r).

The privilege has been held to extend to reports by an official receiver,
in execution of his duties under the Companies Winding-up Act, 1890 (s).

The privilege is not a privilege to be malicious but a privilege that
statements in judicial inquiries should be exempt from any inquiry
whether they were prompted by malice or not, it being for the public
interest that such statements should be made without any apprehension
of subsequent legal proceedings (t).

Reports and Acts of State Officials. — Absolute privilege also attaches
to certain classes of communications made by a state official in advising
the Crown, or by one official to another, whether superior or equal in rank,
in pursuance of official duty (u), and to official notifications of matters
of state concern (v). As regards publication of such notices in newspapers
see 51 & 52 Vict. c. 64, s. 4, post, p. 1049.

Statements made in the courts of proceedings of military and naval
tribunals, whether strictly judicial or not, seem to be in the same position,
as statements in ordinary judicial proceedings, on grounds of public
policy and convenience : the object being to secure the free and fearless
discharge of high public duty, the administration of justice and the
maintenance of military discipline on which the welfare and safety of the
State depends (w). In the cases relating to this subject care must be

(k) Anderson v. Gorrie [1895], 1 Q.B. the party, but to his oomisel ; see 1 Hawk.

668 (colonial judge). Hodgson v. Pare c. 73, s. 8; 1 Starkie on Libel, 254 (2nd ed.).

[1899], 1 Q.B. 455. Barrett v. Kearns (q) Astley v. Younge, 2 Burr. 817.

[1905], 1 K.B. 544. Law v. Llewellyn Revis v. Smith, 18 C. B. 126. Henderson

[1906], 1 K.B. 487 (justice of the peace), v. Broomhead, 4 H. & N. 569, cases of

and see Odgers on Libel (4th ed.), 220-231. malicious and false affidavits. See Fitz-

(l) E. V. Skinner, Loftt, 55. Little v. John v. Mackinder, 9 C. B. (N. S.) 505 ;

Pomeroy, Ir. Rep. 7 C. L. 50. ] Hawk. o. Doyle v. O'Doherty, 0. & M. 418.

73, b. 8. Bac. Abr. tit. ' Libel '■ (A). (r) Andrews v. Nott Bower [1895], 1

(m) Munster v. Lamb, 11 Q.B.D. 588 Q.B. 588, 896, Rigby, L.J.

(solicitor). Hodgson v. Scarlett, 1 B. & (s) Bottomley v. Brougham [1908], 1

Aid. 232 (barrister). And see Odgers on K.B. 584, Channell, J. Burr v. Smith

Libel (4th ed.), 221. [1909], 2 K. B. 360. Of. Hart v. Gumpach,

(«) Odgers on Libel (4th ed.), 226. L. R. 4 P.O. 439.

(o) Seaman v. Netherolift, 2 C P.D. 53. (t) Bottomley v. Brougham, vJ>i supra.

(p) 1 Hawk. 0. 73, ». 8. Bao. Abr. tit. {u) Ohatterton v. Secretary of State for

' Libel ■ (A) 4. Hodgson v. Scarlett, 1 B. & India [1895], 2 Q.B. 189, and see Burr v.

Aid. 232, per Holroyd, J. It is held by Smith, vbi supra, as to reports by officials

some that no want of jurisdiction in the to a Department of Government.

Court to which the complaint shall be (v) Grant v. Secretary of State for

exhibited will make it a libel ; because the India, 2 C. P.D. 445.

mistake of the Court is not imputable to (w) Hart i;. Gumpach, L. R. 4 P. C. 439, 465.

1046 Of Criminal Libels. [book ix.

taken to distinguisli between the privilege wMch protects such reports
and communications from being put in evidence and the immunity from
legal proceedings in respect of the statements contained in the reports.
It is not satisfactorily settled how far the ordinary Courts can enter into
inquiries as to the acts of officials in military and naval matters {x).

Where an action was brought against the president of a military
court of inquiry for a libel contained in the minutes of the court, delivered
by the defendant to the commander-in-chief and deposited in his office,
it was held that these minutes were a privileged communication, and
that neither the original nor a copy could be put in evidence in proof of
the alleged libel («/). And where a court-martial, after stating in their
sentence the acqiiittal of an officer against whom a charge had been
preferred, subjoined thereto a declaration of their opinion, that the charge
was malicious and groundless, and that the conduct of the prosecutor in
falsely calumniating the accused was highly injurious to the service, it was
held that the president of the court-martial was not liable to an action for
a libel for having delivered such sentence and declaration to the judge-
advocate ; and Sir James Mansfield, C.J., said : ' If it appear that the
charges are absolutely without foundation, is the president of the court-
martial to remain perfectly silent on the conduct of the prosecutor, or
can it be any offence for him to state that the charge is groundless and
malicious ? ' {z).

Where it was reported that the plaintiS, an officer in the army, had
made charges against his brother officers, the commander-in-chief directed
that a Court of inquiry should be assembled to inquire into the matter
and report thereon to the commander-in-chief. A Court was held, at
which the defendant, an officer in the army, was required to attend as a
witness. He gave his evidence viva voce, and also handed in a paper
containing in substance a repetition of his evidence, with some additions
upon the subject, and this paper was received by the Court. A report
was made by the Court to the commander-in-chief. The plaintiff unsuc-
cessfully applied for a court-martial upon the defendant for this conduct,
and then brought an action against the defendant, in respect of the
written paper as a libel, and in respect of the viva voce evidence as slander.
It was at the trial ruled that the action would not lie if the verbal and
written statements complained of were made by the defendant, being a
military officer, in the course of a military inquiry in relation to the conduct
of the plaintiff, he being also a military officer, and with reference to the
subject of the inquiry, although the defendant had acted mala fide, and
with actual malice, and without any reasonable and probable cause, and
even if with knowledge that the statement made and handed in by him
as aforesaid was false. On appeal it was held that this ruling was correct,
and that the evidence of the defendant was mostly part of the minutes
of the proceedings of the Court, which, when reported and delivered to
the commander-in-chief, was received and held by him on behalf of the
sovereign, and as such was inadmissible in evidence (a).

(x) See Dawkinsw. Paulet, L. K 8 Q.B. (y) Home D.Bentinck,4Moore(C.P.)563.

255 (discussed in Odgers on Libel (4th ed.), (2) Jekyll v. Moore, 2 B. & P. (N. R.) 341.

232), and Encyol. Laws of England (2nd (a) Dawkins v. Lord Rokeby, 42 L. J.

ed.), tit. ' Actof State.' Q.B. 63, Ex. Ch.efpej-Kelly, C.B.,no action

CHAP. XIII.] Matters of Defence. 1047

The production of documents of this tenor at a trial could in most
cases be resisted on the ground that their disclosure would be against
the public interest.

2. Qualified Privilege.

A qualified privilege attaches to protect publication of certain kinds
of defamatory statements. The matters thus protected sub modo fall
into two classes : (a) reports of certain kinds of proceedings ; (b) what
are described as statements made on a privileged occasion.

The underlying principle on which the qualified privilege is recognised
is the common convenience and welfare of society, not the convenience
of individuals as a class (6).

Proceedings in Parliament. — The reports of the proceedings of either
House of Parliament or of their committees, are privileged, vide ante, p . 1042
and post, p. 1049, if fair and accurate, and published without malice.

Reports of Judicial Proceedings. — By sect. 3 (c) of the Law of Libel
Amendment Act, 1888 (51 & 52 Vict. c. 64), ' a fair and accurate report (d)
in any newspaper (e) of proceedings publicly heard before any court
exercising judicial authority shall, if published contemporaneously with
such proceedings, be privileged : Provided that nothing in this section
shall authorise the publication of any blasphemous or indecent matter ' (/).

This enactment, being limited to newspapers, leaves the common law
untouched as to the publication of reports of judicial proceedings other-
wise than in the pages of a newspaper as defined in the Act of 1888.

In Wason v. Walter (g), Cockburn, C. J., in delivering the judgment of
the Court said, that faithful and fair reports of the proceedings of courts of
justice, though the characters of individuals may incidentally suffer, are
privileged, and that for the publication of such reports the publishers
are neither criminally nor civilly responsible. But a publication of the
proceedings in a court of justice will not be protected unless it be a
true and honest statement of those proceedings (h).

In Stiles v. Nokes (i), EUenborough, C.J., said, ' It often happens that
circumstances necessary for the sake of public justice to be disclosed by
a witness in a judicial inquiry are very distressing to the feelings of indi-
viduals on whom they reflect ; and if such circumstances were afterwards
wantonly published, I should hesitate to say that such unnecessary
publication was not libellous merely because the matter had been given
in evidence in a court of justice ' (j).

lies against parties or witnesses for any- (e) Defined post, p. 1049, note (w).

thing said or done, although falsely and (/) As to blasphemous matter see ante,

maliciously, and without any reasonable p. 393. As to indecent matter, see post,

or probable cause, in the ordinary course Vol. ii. p. 1875.

of any proceedings in a Court of justice. {g) L. R. 4 Q.B. 73, 38 L. J. Q.B. 34,

Affirmed in H. L., R. 7 H. L. 744. See and see Curry v. Walter, 1 B. & P. 523.

Williams v. Star Newspaper Co. [1907], 24 (h) Waterfield v. Bishop of Chichester,

T. L. R. 297, Darhng, J. Marks v. Beyfus, 2 Mod. 118. R. v. Wright, 8 T. R. 297, 298,

25 Q.B.D. 494. Lawrence, J. Stiles v. Nokes, 7 East, 493 ;

(b) Stuart v. Bell [1891], 2 Q.B. 341 , 346 : Wason v. Walter, ubi sup.
approved, in Macintosh u. Dun [1908], A. C. (i) 7 East, 503.

380. (j) And see R. v. Salisbury, 1 Ld. Raym.

(c) As to the history of this section see 341, that it is indictable to publish a
Odgers on Libel (4th ed.), 306. scandalous affidavit made in a Court of

{d) Post, p. 1048. justice.

X048 Of Criminal Libels. [book ix.

Where it is allowable to publish what passes in a court of justice it is
not essential that every word of the evidence, of the speeches, and of
what was said by the judge, should be inserted ; if the report is substan-
tially a fair and correct report of what took place in a court of justice, it
is privileged {k). It may sometimes not be justifiable to publish every-
thing a counsel says in the course of his speech [l).

The party making the publication will not be justified, unless he
confines himself to what actually passed in court (m). Before the case
of Wason v. Walter was decided, it was an established principle, upon
which the privilege of pubUshing a report of any judicial proceedings was
admitted to rest, that such report must be strictly confined to the actual
proceedings in court, and must contain no defamatory observations or
comments from any quarter whatever, in addition to what formed
strictly and properly the legal proceedings. But fair comment upon any
matter of public interest is privileged (n).

The privilege applies to the proceedings of every court of justice, from
the lowest to the highest (o).

Proceedings before magistrates, under the Summary Jurisdiction
Act, 1648 (11 & 12 Vict. c. 43), in which, after both parties are heard,
a final judgment is given, are judicial, and the trial and the judgment
may lawfully be made the subject of a printed report, if that report be
impartial and correct (p) ; and the like privilege extends to the publi-
cation of proceedings taking place publicly on a preliminary inquiry
held under the Indictable Offences Act, 1848 (11 & 12 Vict. c. 42).
The privilege now extends to reports of each separate stage of the
proceeding, even to an ex parte application for process for an
indictable offence (q).

It was at one time said that such publications had a tendency to
cause great mischief by perverting the public mind, and disturbing the
course of justice (r) : and the Court of King's Bench granted a criminal
information for publishing in a newspaper a statement of the evidence
given before a coroner's jury, accompanied with comments ; although
the statement was correct, and the party had no malicious motive in
the publication (s). In Wason v. Walter (t), Cockburn, C.J., is reported
to have said, ' Even in quite recent days, judges, in holding the publication

(Ic) Andrews v. Chapman, 3 C. & K. 286, (g) Kimber v. Press Association [1893],

Campbell, C.J. See Smith v. Scott, 2 C. & 1 Q.B. 65. R. v. Gray, 10 Cox, 18t (Ir.).

K. .580. Hoare v. Silverlooli: (No. 2), 9 C.B. Lewis v. Levy, ubi sup.

20. See Lewis v. Walter, 4 B. & Aid. 645. (r) R. v. Lee, 5 Esp. 123. R. v. Fisher,

As to publishing a judgment alone see 2 Camp. 563. Duncan v. Thwidtes, 3 B. &

Maodougall v. Knight, 14 App. Cas. 194. C. 556 ; 5 D. & R. 447. Delegal v. High-

Milissioh v. Lloyda, 46 L. J. C.P. 404, 13 ley, 3 Bing. {N. C.) 950; but see the remarks

Cox, 75. in Lewis v. Levy, supra. The publication

{I) Flint V. Pike, 4 B. & C. 473 ; 6 D. & of a matter which was not brought before

R. 528, Bayley, J., Holroyd, J. Roberts the magistrate in his judicial character,

V. Brown, 10 Bing. 519, Tindal, C.J. or in the regular discharge of his magisterial

Saunders v. Mills, 6 Bing. 213 ; 3 M. & P. functions, cannot be justified. M'Gregor v.

520. R. V. Creevey, 1 M. & Sel. 281. Thwaites and another, 3 B. & C. 24 ; 4 D.

(m) Delegal v. Highley, 3 Bing. (N. C.) & R. 695.

950. (s) R. V. Fleet, 1 B. & Aid. 379. See

(«) Delegal v. Highley, 3 Bing. (N. C.) East v. Chapman, M. & M. 46 ; 2 C. & P.

950 ; Lewis v. Clement, 3 B. & Aid. 702. 570 ; Charlton v. Watton, 6 C. & P. 835.

(o) Lewis V. Levy, E. B. & E. 537. R. v. Gray, 10 Cox, 184 (Ir.).

(p) Id. ibid. (0 38 L. J. Q.B. 34, 44: L. R. 4 Q.B. 73-

CHAP, xiii.] Matters of Defence. 1049

of the proceedings of courts of justice lawful, have thought it necessary
to distinguish what are called ex -parte proceedings as a probable exception
from the operation of the rule. Yet ex parte proceedings before magistrates,
and even before this Court, as, for instance, applications for criminal
informations, are published every day ; but such a thing as an action or
indictment, founded on a report of such an ex parte proceeding, is
unheard of, and if any such action or indictment should be brought, it
would probably be held that the true criterion of the privilege is not
whether the report was, or was not, ex parte, but whether it was a fair
and honest report of what had taken place, published simply with a view
to the information of the public, and innocent of all intention to do injury
to the reputation of the party affected.' If the report of judicial
proceedings is fair and impartial, the privilege is not taken away by the
fact that the magistrate decided that he had no jurisdiction, or that the
application was made ex parte {u).

Public Meetings. — By the Law of Libel Amendment Act, 1888 (51 &
52 Vict. c. 64) (v), sect. 4, ' A fair and accurate report published in any
newspaper (w) of the proceedings of a public meeting, or (except where
neither the public nor any newspaper reporter is admitted) (ww), of any
meeting of a vestry, town council, school board, board of guardians, board
or local authority formed or constituted under the provisions of any Act of
Parliament, or of any committee appointed by any of the above-mentioned
bodies, or of any meeting of any commissioners authorised to act by
letters patent. Act of Parliament, warrant under the Eoyal Sign Manual,
or other lawful warrant or authority, select committees of either House
of Parliament, justices of the peace in quarter sessions assembled for
administrative or deliberative purposes, and the publication at the request
of any Government office or department, officer of State, commissioner
of police or chief constable of any notice or report issued by them for the
information of the public, shall be privileged, unless it shall be proved
that such report or publication was published or made maliciously :
Provided, that nothing in this section shall authorise the publication of
any blasphemous or indecent matter. Provided also that the protection
intended to be afforded by this section shall not be available as a defence
in any proceedings if it shall be proved that the defendant has been
requested to insert in the newspaper in which the report or other publica-
tion complained of appeared a reasonable letter or statement by way of
contradiction or explanation of such report or other publication, and has
refused or neglected to insert the same ; Provided further, that nothing
in this section contained shall be deemed or construed to limit or abridge

(m) Usill V. Hales, 3 C. P. D. 319. Elim- observations therein printed, for sale and

ber V. Press Association [1893], 1 Q.B. 65. published in England or Ireland peiiodi-

(v) At common law newspapers were oally, or in parts or numbers, at intervals

liable for republishing slanders uttered at not exceeding twenty-six days between the

a public meeting. Purcell v. Sowter, 1 publication of any two such papers, parts,

C. P.D. 781 ; 2 C. P.D. 215. The law or numbers. Also any paper printed in

was amended in 1881 (44 & 45 Vict. c. 60), order to be dispersed and made public

and in 1888 further amended by the weekly or oftener, or at intervals not

enactment above set forth. exceeding twenty-six days, containing only

{w) The word ' newspaper ' shall mean or principally advertisements.' 44 & 45

'any paper containing public news, intelli- Vict. c. 60, s. 1.
gence, or occurrences, or any remarks or (ww) See 8 Edw. VII. o. 43,

1050 Of Criminal Libels. [book ix.

any privilege now by law existing, or to protect the publication of any
matter not of public concern, and tbe publication of which is not for the
public benefit.

' For the purposes of this section " public meeting " shall mean any
meeting bona fide and lawfully held for a lawful purpose (x) and for the
furtherance or discussion of any matter of public concern, whether the
admission thereto be general or restricted/

Statements made on a Privileged Occasion. — The publication of
defamatory matter which is false is excused if made in good faith on a
privileged occasion and without malice in fact. ' The defence of privileged
occasion is in a criminal case raised under a plea of not guilty. Whether
the occasion was or was not privileged is a matter of law for the judge
and not of fact for the jury (y). When the judge has ruled the occasion
privileged the ordinary presumption of law that a defamatory publication
is malicious is excluded (z), and in order to defeat the claim of privilege
it becomes necessary for the prosecution to prove that the defendant in
publishing the defamatory matter was actuated by express or actual
malice in fact, i.e. by some wrong indirect or improper motive such as
personal spite or ill-will against the person or class of persons defamed (a).
The evidence necessary to defeat the claim of privilege may be intrinsic,
i.e. may lie in the language used or in the circumstances (&), or extrinsic,
i.e. by direct proof of other conduct or language of the defendant
indicating personal ill-will (c). It is not enough for this purpose to
prove that the words published are untrue or published by inadvert-
ence or forgetfulness or negligently or with want of sound judgment or
in honest indignation (d). But express malice can be proved by shewing
that the defendant knew the words published to be untrue or did not
believe them to be true (e), or that the words used are much too
violent for the occasion and circumstances ' (/).

If at the close of the case for the prosecution there is no intrinsic or
extrinsic evidence of express malice, it is the duty of the judge to
direct a verdict for the defendant iff); but wherever there is evidence
of express malice, either intrinsic or extrinsic, it is the duty of the
judge to leave the question of express malice to the jury (g). Where
defamatory matter was published on a privileged occasion it is not
enough for the prosecution to prove that the facts proved are con-
sistent with the presence of malice as well as with its absence ; for the
absence of such malice is presumed until proof of its presence is given (h).

(x) As to unlawful assemblies and Pilfold, 1 M. & Eob. 190, Taunton, J.
meetings, see ante, p. 422. (d) Odgers on Libel (4th ed.), 328.

(y) Hebditch v. Mollwaine [1894], 2 Q.B. (e) Clark v. Molyneux, 3 Q.B.D. 246.

54. Stuart v. Bell [1891], 2 Q.B. 341. Hayward & Co. v. Hayward, 34 Ch. D. 198,

(z) Allen V. Flood [1898], A. C. I, 93, 206.
Lord Wataon, 172, Lord Davoy. Bromage (/) Gilpin v. Fowler, 9 Ex. 615.

I/. Prosser, 4 15. & C. 247, 255. (ff) As to whether lie is bound to act if

(a) Clark v. Molyneux, 3 Q.B.D. 246. no submission is made on the part of the

Royal Aquarium v. Parkinson [1892], 1 defence, see R. v. George 73 J. P. 11.
Q.B. 431. ig) Cooke v. Wildes, 5 E. & B. 328.

(6) Rogers v. Clifton, 3 B. & P. 587. (h) Somerville v. Hawkins, 10 C. B. 588.

Patteson v. Jones, 8 B. & C. 578 ; 3 Man. Taylor v. Hawkins, 16 Q.B. 308. Harris

and Ry. 101. Kelly v. Partington, 4 B. v. Thompson, 13 C. B. 333. Wenman v.

& Ad. 700; 2 Nev. & M. 460. Ash, 13 C. B. 836. Wason v. Walter, L. R.

573 ; 1 Tyr. & G. 12. See Blake v P.C. 439 ; 43 L. .J. P.C. 25.

CHAP. XIII.] Matters of Defence. 1051

Where a letter containing defamatory words is written upon a privileged
occasion, surrounding circumstances are to be considered in determining
whether the words used are so much too violent for the occasion as to
rebut the presumption of the absence of malice arising from the privilege
of the occasion ; and if from surrounding circumstances it appears that
the words are capable of two constructions, one of which is compatible
with the absence of malice, then the presumption of the absence of malice
which existed in the first instance from the privilege of the occasion
should be allowed to prevail throughout {i). But juries are directed not
to scrutinise too closely the expressions used on a privileged occasion,
but to satisfy themselves that there is clear evidence of malicious intent
before finding that the privilege has been lost (j).

What constitutes a Privileged Occasion. — Belief in the truth of defa-
matory statements published creates no privilege, although disbelief in
their truth will defeat a claim of privilege. The statements excused by
proof that they were published on a privileged occasion include communi-
cations made in good faith in respect to a matter as to which the defendant
has a legal, moral, social, or religious duty whether public or private (Tc),
or in the general interests of society {I), or in respect whereof he has
an interest, to another, who has a corresponding interest or duty with
respect to the subject matter (wi), and communications made in self-
defence. An occasion is not privileged if a defamatory communication
is made from motives of self-interest by persons who for the convenience
of a class trade for profit in the character of other persons, e.g. trade-
protection societies and inquiry agencies (n). The duty or interest
must exist in law by reason of the facts of the case at the date of
publication, and is not created by the belief of the defendant in its
existence (o).

Where the occasion is privileged it is immaterial whether the state-
ments were volunteered or made in answer to inquiries : but in cases near
the line the fact that the information was volunteered is an element in
determining whether the occasion is privileged (75).

If the communication is made in the regular and proper course
of a proceeding, it is privileged. Thus where a writing, containing the
defendant's case, and stating that some money, due to him from the
Government for furnishing the guard at Whitehall with fire and candle,
had been improperly obtained by a Captain C, was directed to a general
officer and the four principal officers of the Guards, to be presented to
His Majesty for redress a criminal information was refused, on the ground
that the writing was merely a representation of an injury drawn up in a
proper way for redress, without any intention to asperse the prosecutor

(») Spill V. Maule, L. R. 4 Ex. 232. 392, 418. Macintosh v. Dun ri908J, A. C.

(j) Woodward v. Lander, 6 C. & P. 548, 390, 399.
Alderson, B. Cf. Odgers on Libel (4th (m) See Harrison v. Bush, 5 E. & B. 344,

ed.), 333. 348.

{A)Henwoodw. Harrison, L.R. 7 C.P. 606. (ji) Macintosh v. Dun, uhi sup. In

Toogood V. Spyring, 1 Cr. M. & R. 181, 193. this case the English and American authori-

See Spencer v. Amerton, 1 M. dfc Rob. 470. ties are collected and discussed.
Warren v. Warren, 4 Tyrw. 850. 1 Cr. M. (o) See Stuart v. Bell [18911, 2 Q.B. 341.

& R. 150. Wright v. Woodgate, 2 Cr. M. Hebditch v. Mcllwaine [1894], 2 Q.B. 54.

& R. 573, 1 Tyr. & Gr. 12. Coxhead v. And see Jenour v. Delmege [1891], A. C.

Richards, 2 C. B. 569. 73.

(I) Whiteley v. Adams, 15 C. B. (N. S.) (p) Macintosh v. Dun [1908], A. C. 390.

J052 Of Criminal Libels. [book ix.

although there was a suggestion of fraud {q). So a petition addressed
by a creditor of an officer in the army to the Secretary-at-War, hona fide,
and with the view of obtaining, through his interference, the payment of
a debt due, and containing a statement of facts which, though derogatory
to the officer's character, the creditor believed to be true, is not action-
able (r). A letter written to the Postmaster-General, or to the Secretary
to the General Post-Office, complaining of misconduct in a postmaster,
or guard of a mail, is privileged, if written as a hona fide complaint to
obtain redress for a grievance that the party really believes he has
suffered (s). And where the defendant being deputy-governor of
Greenwich Hospital, wrote a large volume, containing an account
of the abuses of the hospital, and treating with much asperity the
characters of many of the officers of the hospital (who were public
officers), and of Lord Sandwich in particular, who was First Lord
of the Admiralty, and printed several copies of it, which he dis-
tributed to the governors of the hospital only, and not to any other
person, the Court refused to allow a criminal information to be filed.
Lord Mansfield said, that distribution of copies to the persons who
were from their situations called on to redress these grievances, and
had, from their situations, competent power to do it, was not a publi-
cation sufficient to make the publication criminal (t). A letter written
to a Secretary of State, imputing to the town clerk and clerk to the
justices of a borough, corruption in the latter office, was held not to be
privileged, because the Secretary of State had no direct authority in
respect of the matter complained of, and was not a competent tribunal to
receive the application (m). But a memorial presented to the Secretary of
State for the Home Department by the elector of a borough complaining
of the conduct of a justice of the peace during a recent election of a
Member of Parliament for the borough, and imputing that he had made
speeches inciting to a breach of the peace, and praying that the secretary
would cause an inquiry to be made into the conduct of the plaintiff, and
that, on the allegations being substantiated, the secretary would recom-
mend to the Queen that the justice should be removed from the commission
of the peace, is a privileged communication ; for though the Lord
Chancellor generally is consulted as to the removal of justices of the
peace, the memorial might be considered as addressed to the Crown,
through the secretary of state who might have caused the inquiry to be
made, have communicated with the Lord Chancellor, and have, in effect,
recommended the removal of the justice (v). And where the publication

(?) R. V. Bayley, Andr. 229. Bao. Abr. no difference,

tit. 'Libel'. (A) 2. As to proceedings in («) Blagg v. Sturt, 10 Q.B. 899. This

Courts of justice, see ante, p. 1044. case may, perhaps, be shaken by Har-

(r) Fairman v. Ives, 5 B. & Aid. 642. risen v. Bush, infra. The cases, however,

See Wenman v. Ash, 13 C. B. 836, Maule, J. are distinguishable, as the clerk to justices

(.■!) Woodward v. Lander, 6 C. & P. 548, of the peace is appointed by them, and a

Alderson, B. Blake v. Pilford, 1 M. & Rob. Secretary of State has no authority as to

198, Taunton, J. him, either directly or indirectly.

(() R. ti. Baihe, 30 Geo. III. Holt on (v) Harrison v. Bush, 5 E. & B. 344. In

Libel, 173, Holt (N. P.) 312 TO. 1 Ridgway's Dickeson v. Hilliard, L. R. 9 Ex. 79: 43

Collection of Erskine's Speeches, p. 1. L. J. Ex. 37, it was ruled that the agents of

Lord Mansfield seemed to think that candidates at an election had no oom-

whether the paper were in manuscript or mon interest after the election was over,
printed, under these oitcumstanoes, made

CHAP. xiiL] Matters of Defence. 1053

is an admonition, or in the course of the discipline of a religious sect, as
the sentence of expulsion from a society of Quakers, it is privileged (w).
So a letter written by a son-in-law to his mother-in-law, containing
imputations on the character of a person whom she was about to marry,
and desiring a diligent and intelligent inquiry into his character, if written
botia fide is privileged (x). Where an advertisement was published by
the defendant at the instigation of A., the plaintiff's wife, for the purpose
of ascertaining whether the plaintiff had another wife living when he
married A., it was held that although the advertisement might impute
bigamy to the plaintiff, yet having been published under such authority,
and with such a view, it was not actionable {y). But it is very doubtful
whether the wife would now be considered to have sufficient interest in such
an inquiry to justify the offering of such a reward in a newspaper (z).

A communication made by a solicitor on behalf of his chent to a third
party, if reasonably necessary and usual in the discharge of his duty to
his chent and in the interest of his client it is privileged (a).

If a report made by a medical officer of health to a local authority in
pursuance of the Metropolis Management Act, 1855 (18 & 19 Vict, c. 120),
contains defamatory matter, a newspaper proprietor is not privileged to
pubUsh it, although the local authority is bound to publish it (&).

When business communications are made on a privileged occasion,
i.e. on matters relevant to business between the parties and necessary
in due regard to the interests of the parties (c) the privilege is not lost
by publishing the communication in the ordinary course of dictation or
transmission to clerks of the defendant (d). In other words the privilege
covers all incidents of the transmission and treatment of the communica-
tion which are in accordance with the reasonable and usual course of
business (e).

A letter written confidentially to persons who employed A. as their
solicitor, conveying charges injurious to his professional character in the
management of certain concerns which they had entrusted to him, and
in which B., the writer of the lettei, was likewise interested, was held to
be privileged (/). And if a person, in a private letter to the party, should
expostulate with him about some vices, of which he apprehends him to
be guilty, and desire him to refrain from them ; or if a person should
send such a letter to a father, in relation to some faults of his children ;
these, it seems, would not be actionable but acts of friendship, not
designed for defamation but reformation (g). But this doctrine must be
appUed with some caution ; for to send an abusive letter filled with

{w) K. V. Hart, 2 Burn's Eccl. L. 779. (c) See Tuson v. Evans, 12 A. & E. 733.

The charge of a bishop to his clergy in Whiteley «. Adams, 15 C. B. (N. S.)392.

convocation is a privileged communication. (d) Edmondson v. Birch [1907], 1 K.B.

Laughton v. Bishop of Sodor and Man, 371. Sharp v. Skues [1909], 25 T. L. R.

L. R. 4P.C. 495. 336. As to what is not the ordinary course

{x) Todd V. Hawkins, 8 C. & P. 88, of business see Pullman v. Hill [1891], 1

Alderson, B. Q-B. 524.

iy) Delany v. Jones, 4 Esp. 19, Ellen- (c) Edmondson v. Birch at p. 382, per

borough, C. J. Moulton, L.J.

(z) Lay V. Lawson, 4 A. & E. 795, 798, (/) M'Dougall v. Claridge, 1 Camp. 267.

Denmaii, C.J. Wright v. Woodgate, 1 Tyr. & Gr. 12.

(a) Boxsius v. Goblet Freres [1894], 1 ig) Peacock v. Reynell, 2 Brownl. 151,

Q.B. 842. 152. Bac. Abr. tit. ' Libel 1 (A) 2, in the

(6) Popham v. Pickbum, 7 H. & N. 891. notes.

1054 Of Criminal Libels. [BOOK ix.

provoking language to another, is an offence of a public nature, and
punishable as such, inasmuch as it tends to create ill blood, and cause
a disturbance of the public peace {h). A letter written by a master, in
giving a character of a servant, is privileged, unless its contents be not
only false but malicious {i).

Where a tradesman's wife being informed that one of the female
assistants was dishonest wrote her a letter accusing her of theft and
reproaching her, Huddleston, B., held the occasion privileged, and said
that if the prisoner honestly believed what she wrote, the manner in
which she expressed herself ought not to be too nicely criticised (/).

If a tenant is asked by his landlord to make communications to him
in respect of any neglect of duty in his gamekeepers, any communication
made by him in respect of any such neglect of duty is privileged, if written
hona -fide, and on the eupposition that he was doing his duty to his land-
lord {k). The plaintiff was the agent of the defendants, a trading company,
and it was part of his duty to furnish them with an account of his trans-
actions, to enable them to prepare the balance sheet for the inspection
of the shareholders. This balance sheet was prepared and duly referred
to the auditors, who reported that there was a deficiency, for which the
plaintiff was responsible, and that his accounts had been badly kept.
There was evidence that an explanation had been offered to the auditors,
which they had disregarded, but no evidence that the directors had any
knowledge of this explanation. The directors, after laying the accounts
before a general meeting of the shareholders, caused a letter containing the
part of the report which affected the character of the plaintiff to be printed
and forwarded to the absent shareholders. It was held, first, that this
letter was published on a privileged occasion, as it was the duty of the
defendants to communicate to all the shareholders any part of the report
of the auditors which materially affected the accounts of the company ;
secondly, that there was no intrinsic or extrinsic evidence of malice to be
left to the jury, as the report of the auditors was published without
comment, and the explanations offered to the auditors did not come before
the defendants ; and that causing the letter to be printed was a reasonable
and necessary mode of publishing it to the absent shareholders {L).

If a man hona fide writes a letter in his own defence, and for the defence
of his rights and interests, and is not actuated by any malice, that letter
is privileged, although it may impute dishonesty to another (m).

A letter published by an attorney honestly in vindication of the
character of a client against charges published and circulated against the
client by the prosecutor, is privileged {n).

(h) R. V. Cator, 2 East, 361. Thorley v. v. Slade, 13 Q.B. 796. Croft v. Stevens,

Lord Kerry, 4 Taunt. 355. In the last 6 H. & N. 570.

case the letter was unsealed, and opened (j) R. w. Perry, 15 Cox, 169.

and read by the bearer. See Bac. Abr. tit. {k) Cockayne v. Hodgkinson, 5 C. & P.

' Libel ' (B), 2. Popham, 189, cited in 543, Parke, B.

Holt on Libel, 222, as to the sending of such (I) Lawless v. Anglo-Egyptian Cotton

a letter being calculated to make the and Oil Co., L. R. 4 Q.B. 262. See

recipient publish it among his friends. Edmondson v. Birch [1907], 1 K.B. 371.

(i) Weatheratone v. Hawkins, 1 T. R. Nevill v. Kne Art and General Ins. Co.

110. Edmondson v. Stephenson, Bull. N. [1897], A. C. 68.

P. 8. Child V. Affleck, 9 B. & C. 403. 4 M. (m) Coward v. Wellington, 7 C. & P. 531,

& R. 338. Manby v. Witt, 18 C. B. 544. Littledale, J. See Whiteley v. Adams,

Taylor v. Hawkins, 16 Q.B. 308. Somer- 15 C. B. (N. S.) 392 : 33 L. J. C. P. 89.

ville V. Hawkins, 10 C. B. 583. Gardener (m) R. v. Veley, 4 F. & F. 1117. Cf.

CHAP. XIII.] Matters of Defence. 1055

It has been held that the publication of defamatory matter by a trade
inquiry or trade protection agency is not privileged when the society
holds itself out as being ready for reward to communicate to subscribers
and others confidential information as to the commercial standing of
others for the exclusive use and benefit in business of the persons receiving
the communication (o).

Defamatory telegrams or post cards are not privileged though sent
hona fide, and under circumstances which otherwise would have made it
privileged, because the mode of publication selected involves communi-
cation of the defamatory matter to persons who have no interest to
receive it (p).

It has already been pointed out that the privilege must not exceed the
occasion. Statements to be privileged must fall within the scope of the
duty or interest which privileges the occasion ; and must be published to
persons entitled to hear them and not to strangers. Where, therefore,
remarks were made reflecting on a Roman Catholic priest at a public
meeting called for the purpose of petitioning Parliament against the grant
to the Roman Catholic College at Maynooth it was held that the speaker
was not privileged by the circumstance that the libel was published in
the course of a bona fide discussion respecting the propriety of supporting
that college (</).

3. Fair Comment.

It is also an answer to an indictment for defamatory libel (under
the plea of not guilty) to prove that the matter complained of is
' fair comment ' ' honestly ' made without actual malice upon facts
truly stated and with reference to a matter of public interest and
concern (r). This defence is not in strictness identical with qualified
privilege, because it is equally open to all the public, and there is no
special right of comment in the case of newspapers. The plea — unlike
qualified privilege — does not protect any false statement of fact (s) even
if made in good faith (t), and what is claimed to be the comment must not
be so mixed up with the facts as to make it difiicult for the reader to
distinguish what is fact and what is comment (m). Nor may the facts
on which the comment is based be mis-stated : and if the facts on which
the comment is made do not exist the defence of comment fails (v).

Comment cannot be fair which is built upon facts which are not truly

Quartz Hill Gold Mining Co. v. Beall, 20 (r) See Wa.son v. Walter, L. K. 4 Q.B. 73.

Ch. D. 501, a circular sent by a solicitor for Odgers on Libel (4th ed.), 184 et seq.

some shareholders in a company on their (a) See E. v. Flowers, 44 J. P. 377, Field,

behalf to all the shareholders. J. Campbell v. Spottiswoode, 3 B. & S.

(o) Macintosh v. Dun [1908], A. C. 390, 769. Merivale v. Carson, 20 Q.B.D. 275.

reversing the decision of the High Court (t) Thomas v. Bradbury Agnew & Co.

of AustraUa, 3 Australia C. L. R. 1134, and [1906], 2 K.B. 627, 638, Collins, M.R.

dechning to follow American rulings on the Hunt v. Star Newspaper Co. [1908], 2 K.B.

subject. 309.

(p) Williamson v. Freer, L. R. 9 C.P. («) Andrews v. Chapman, 3 C. & K.

393 ; 43 L. J. C.P. 181. Whitfield v. S.E.R. 288, adopted by Moulton, L.J. in Hunt v.

[1858], E. B. & E. 115. Sadgrove v. Hole Star Newspaper Co. [1908], 2 K.B. at p

[1891], 2 K.B. 1 (post card). 319.

(q) Hearne v. Stowell, 12 A. & E. 719. (v) Joynt v. Cycle Trade Publishing Co

See Quartz Hill Gold Mining Co. v. Beall, [1904], 2 K.B. 294 ; [1905], 2 K.B. 292 :

20 Ch. D. 511. Hoare v. Silverlock, 12 approved in Hunt v. Star Newspaper Co.,

Q.B. 624. uhi supra.

1056 Of Criminal Libels. [book ix.

stated, and further, it must not convey imputations of an evil sort except
so far as the facts truly stated warrant the imputation (w).

' A personal attack may form part of a fair comment upon given facts
truly stated if it be warranted by those facts— in other words, in my view,
if it be a reasonable inference from these facts. Whether the personal
attack in any given case can reasonably be inferred from the truly stated
facts upon which it purports to be a comment is a matter of law for the
determination of the judge before whom the case is tried, but if he should
rule that this inference is capable of being reasonably drawn, it is for the
jury to determine whether in that particular case it ought to be drawn ' [x).

The imputation of corrupt motives cannot be relied on as fair comment
unless warranted by the facts stated (y) or arising fairly and legitimately
out of the conduct of the person criticised {y).

The term ' of public interest ' covers public affairs, and the public acts
of public men, the administration of justice, the doings of local authorities
civil and ecclesiastical, and the working of public institutions such as
hospitals and charities, literature and dramatic or pictorial art, and pubUc
entertainments or articles or letters in a newspaper (z), or any case where
any person brings himself before the public (a), e.g. by offering himself
as a Parliamentary candidate (&).

The Board of Admiralty having ordered the defendant, the Queen's
printer, to print a board minute relating to their proceedings in naval
ship-building, which contained a letter of the Comptroller of the Navy in
reference to plans of the plaintiff submitted to the board, the defendant
sold copies to the public ; the plaintiff sued the defendant for defamation,
averring that a statement in such letter that the plans derived no weight
from his antecedents, meant that his plans were worthless, and were
calculated to injure him in his profession; but no actual malice was imputed.
It was held, by the majority of the Court (Willes, Byles, and Brett, J J. :
dissentiente, Grove, J.), that the plaintiff was rightly non-suited on the
ground that every man has a right to discuss freely, if honestly and
without malice, any subject in which the public are generally interested,
and that what the defendant had done merely amounted to this (c).

Comments by a churchwarden upon the conduct of the clergymanj in
taking meals in the vestry, and in causing books to be sold in the church
during service, are matters of public interest, and may lawfully be
published if they do not exceed the boundaries of fair criticism {d).

' In the case of literary or dramatic works (e) the occasion for fair
comment is created by the publication and a right then arises to criticise
honestly, however adversely ' (/).

A publication commenting upon a literary work, exposing its follies

(w) Id. ibid. (J) Davies v. Duncan, L. R. 9 C. P.

(x) Dakhyl v. Labouohere [1908], 2 396 : 43 L. J. C.P. 185.

E.B. 325 n., 329»., 77 L. J. K.B. 728; 23 (c) Henwood v. Harrison, L. R. 7 C.P.

T. L. R. 364, Lord Atkinson. 606-: 41 L. J. C.P. 206.

iy) Joynt v. Cycle Trade Publishing Co. (d) Kelly v. Tinling, L. R. 4 Q.B. 699 ;

[1904], 2 K.B. Hunt v. Star Newspaper Co. 35 L. J. Q.B. 231.

[1908], 2 Q.B. 309. Campbell v. Spottis- (e) Merivale v. Carson, 20 Q.B.D. 275.

woode, 3 B. & S. 776: 32 L. J. Q.B. 185. McQuiie v. Western Morning News [19031,

(z) Heriott v. Stuart, 1 Esp. 437. 2 K.B. 100.

Stuart V. Lovell, 2 Stark. (N. P.) 93. (/) Thomas «. Bradbury Agnew & Co.

(o) See Odgers on Libel (4th ed.), 195. [1906], 2 K.B. 617, 627, Collins, M.R.

CHAP. XIII.] Matters of Defence. 1057

and errors, and holding up the author to ridicule, is not regarded aa
defamatory if the comment does not exceed the limits of fair and candid
criticism, e.g. by attacking the character of the writer, unconnected with
his publication (g). But if a person under the pretence of criticising a
literary work, defames the private character of the author, and, instead
of writing in the spirit and for the purpose of fair and candid discussion,
travels into collateral matter, and introduces facts not stated in the work,
accompanied with injurious comments upon them, such person is a
libeller (h). So if a reviewer imputes base, sordid, dishonest, and wicked
motives, it is no answer that the reviewer published only what he believed
was correct and true (i).

There is no distinction between a handbill, circular, or advertisement
of a tradesman and a book ; both are addressed to the public, and both
are subject to such comments as do not exceed the bounds of fair and
reasonable criticism (/).

It has been doubted whether the preaching a sermon, in the
ordinary mode of a clergyman's duty, makes it public property, so as to
allow observations upon it in the same way that a publication of a
literary work does (h).

It is lawful to make a fair comment on a place of public enter-
tainment (I).

Where the defence of fair comment is raised the state of mind of the
defendant when he published becomes material, to ascertain whether he
published in a spirit of unfairness or actuated by any malice, and ex-
trinsic evidence is admissible to establish the defendant's motives in
publication whether to shew his guilt or innocence (m).

4. Truth.

At common law the truth of a defamatory libel was no defence to
criminal proceedings taken in respect of its publication (n).

If a libel imputes to a man that he has committed a crime, proof of
the truth of such imputation is not admissible under a plea of not guilty.
Where a hbel imputed murder to certain soldiers, evidence was offered
of the truth of such imputation, and rejected : and the Court of King's
Bench were unanimous that such evidence was rightly rejected (o).

(g) Can v. Hood, 1 Camp. 355. In an tendency. Tabart v. Tipper, 1 Camp. 354.

action for a libel upon the plaintiff in his (i) Campbell v. Spottiswoode, 3 B. & S.

biasiness of a bookseller, accusing him of 769 ; 31 L. J. Q.B. 185.

being in the habit of publishing immoral {j) Paris i;. Levy, 9 C. B. (N. S. ) 342.

and foolish books, the defendant may (k) Gathercole v. Misll, 15 M. & W. 319.

adduce evidence to shew that the supposed (I) Dibden v. Swan [1793], 1 Esp. 28.

Ubel is a fair stricture upon the general See Odgers on Libel (4th ed. ), 204.

run of the plaintiff's publications. Tabart (m) Thomas v. Bradbury Agnew & Co.

V. Tipper, 1 Camp. 350 ; Strauss v. Francis, [1906], 2 K.B. 617, 627, 642, Collins, M.R.

4 F. & F. 1107. If the plaintiff contends Plymouth Mutual Co-operative Society v.

that the alleged libel exceeds the limits of Trades Publishing Association [1906], 1

fair criticism, he should, unless the con- K.B. 403, 413, Vaughan Williams, L.J.

trary appears on the face thereof, put in (n) See Wyatt v. Gore. Holt, N. P. 299,

his work as part of his case (S. C. and see 306. This rule was expressed by saying 'the

4 F. & F. 939). greater the truth the greater the libel.'

(A) Nightingales. Stockdale [1809], Ellen- (o) E. a Burdett, 4 B. & Aid. 95. Bayley,

borough, O.J. Selw. (N. P.) 1044. Merivale J., said (p. 147), ' In some cases, indeed, it is

V. Carson (uhi sup. ). Thomas v. Bradbury possible that the falsehood may be of the

Agnew & Co. {ubi sup. ). It is lawful to very essence of the libel. As for instance,

animadvert upon the conduct of a book- suppose a paper were to state that A. was

seller in publishing books of an improper on a given day tried at a given place, and

VOL. I. 3 y

1058 Of Criminal Libels. [book ix.

Where an information for a libel stated that certain transactions took
place, and that the libel was published of and concerning them, and then
set out the libel as referring to them, and general evidence was given in
proof of such transactions on the part of the prosecution, the defendant
was not allowed to give evidence of the particular nature of those trans-
actions so as to bring into issue the truth or falsehood of the libel. But
if such evidence were adduced, bona fide, to shew that the transactions
referred to in the alleged libel are not the same with those which the
information supposes it to have had in view, it is admissible (p).

By sect. 6 (.7) of the Libel Act, 1843 (6 & 7 Vict. c. 96), ' On the trial of
any indictment or information for a defamatory libel, the defendant
having pleaded such plea as hereinafter mentioned, the truth of the
matters charged may be inquired into, but shall not amount to a defence,
unless it was for the public benefit that the said matters charged should
be published ; and to entitle the defendant to give evidence of the truth
of such matters charged as a defence to such indictment or information
it shall be necessary for the defendant, in pleading to the said indictment
or information, to allege the truth of the said matters charged in the manner
now (r) required in pleading a justification to an action for defamation,
and further to allege that it was for the public benefit that the said matters
charged should be published, and the particular fact or facts by reason
whereof it was for the public benefit that the said matters charged should be
published, to which plea the prosecutor shall be at liberty to reply generally,
denying the whole thereof ; and if after such plea the defendant shall be
convicted on such indictment or information it shall be competent to the
court, in pronouncing sentence, to consider whether the guilt of the
defendant is aggravated or mitigated by the said plea, and by the evidence
given to prove or to disprove the same : provided always, that the truth
of the matters charged in the alleged libel complained of by such indict-
ment or information shall in no case be inquired into without such plea
of justification : provided also, that in addition to such plea it shall be
competent to the defendant to plead a plea of not guilty : provided also,
that nothing in this Act contained shall take away or prejudice any
defence under the plea of not guilty which it is now competent to the
defendant to make under such plea to any action or indictment or
information for defamatory words or libel.'

It has been held in Ireland that to an indictment for publishing in a
newspaper a certain false, defamatory, malicious, and seditious libel
concerning her Majesty's Government and the Parliament of the United
Kingdom, with intent to create disaffection and hatred to her Majesty's

convicted of perjury ; if that be true it justices (R. v. Garden, 5 Q.B.D. 1. B. v.

may be no libel, but if false, it is from Townsend, 10 Cox,_356; 4 F. & F. 1089),

beginning to end calumnious, and may no unless the prosecution is of a person

doubt be the subject of a criminal prosecu- responsible for the publication of a news-

tion. Possibly, therefore, in such a case, paper for a libel published therein ; 44 & 45

evidence of the truth of such a statement Vict. c. 60, s. 4, post, p. 1060.

by the production of the record, might [r) Aug. 24th, 1843, the date of the

afford an answer to a prosecution for passing of the Act. The subsequent

libel.' R. V. Brigatock, 6 C. & P. 184. alterations in civil pleading are not in

(p) R. V. Grant, 5 B. & Ad. 681. strictness appUcable to a justification under

{(?) This section does not apply to pro- sect. 6. For a precedent see Crown OflSce

ceedings at a preliminary inquiry before Rules, 1906, form No. 81.

CHAP, xiii.] Matters of Defence. 1059

Grovernment and the Parliament, a special plea of justification cannot be
pleaded under sect. 6 of the Libel Act, 1843 (s).

Where to a criminal information for a libel the defendant pleaded a
justification, alleging that the imputations contained in the libel were
true, it was held that it was not competent to the defendant to prove
that imputations identical with those in the libel had been previously-
published in a book {t).

Where a justification is pleaded under 6 & 7 Vict. c. 96, s. 6, to an
information for a defamatory libel, and the libel contains several distinct
imputations, and the plea alleges the truth of all, and is traversed generally,
if the evidence fail as to any one of them, the verdict will be entered
generally against the defendant. Where, therefore, upon the trial of such
an issue upon such a plea, evidence was offered in support of some only
of the imputations, and the jury found that only one of the imputations
upon which evidence was offered was proved, the verdict was entered for
the Crown generally ; as there can be no partial finding for a defendant
on the ground that a justification is partially established (m). But where
the libel was general, to the effect that the prosecutor was one of a gang
of cardsharpers, and the plea of justification alleged specific instances of
cardsharping, and also that the prosecutor confederated with others for
the purpose of cheating, and did so cheat, at various places, it was held
that it was sufficient to prove the plea in substance, and that it was so
proved by the jury finding that in two instances the prosecutor did cheat
at cards, and that he did confederate with other persons for that
purpose {v).

Evidence in Aggravation or Mitigation. — By the express enactment
that, wherever there is a conviction after such a plea of justification
' the Court, in pronouncing sentence,' shall ' consider whether the guilt
of the defendant is aggravated or mitigated by the said plea, and by
the evidence given to prove and disprove the same,' the Court is to
consider the evidence on the one side and the other, and to form their
own conclusion whether it aggravates or mitigates the guilt of the defen-
dant, and they are to apportion the punishment accordingly. The
evidence, as it appears on the notes of the judge who presided at the trial,
comes in place of affidavits in aggravation and mitigation of punishment
when sentence is to be pronounced, and by that the sentence is to be
regulated, and not by any declaration of the jury as to the credit which
they think ought to be given to the witnesses (w). In such a case the
defendant may, in mitigation of punishment, shew by affidavit that
after the publication, but before pleading, information was given to him
which, if true, would have supported an allegation in the plea, evidence
having been given at the trial to account for the non-production of
proof, but no evidence in support of the allegation itself {x).

A libel purported to be founded on certain newspaper reports, and upon
the foundation of those reports charged certain troops with acts of murder.
After conviction the defendant tendered affidavits to prove that the

(s) R. V. Duffy, 6 St. Tr. (N. S.) 303. (u) K. v. Newman, 1 E. & B. 558.

See R. V. MoHugh [1901], 2 Ir. Rep. 569 ; (v) R. v. Labouohere, 14 Cox, 419.

Ex parte O'Brien, 15 Cox, 180 ; 2 Cox, 45. (w) R. v. Newman, 1 E. & B. 558.

(<) R. V. Newman, 1 E. & B. 268. {x) Ibid.

1060 Of Criminal Libels. [book ix.

newspapers did contain those reports, and also other affidavits that the
facts were true. The former affidavits were received, because they
explained the situation in which the defendant stood at the time he wrote
the libel, and shewed the impression under which he wrote ; but the latter
were rejected, because the receiving them might deprive of a fair trial
persons who might afterwards be tried for the murders ; and if murders
were committed, the proper course was to prosecute and bring to a fair
trial, not to libel and create an unfair prejudice (y).

As to the admissibility of the defendant and the wife or husband of
the defendant as witnesses for the defence, see 51 & 52 Vict. c. 64, s. 8,
and post, Book XIII. tit. ' Evidence,' Chapter V.

As to costs see post, Vol. II. p. 2039 ei seq.

Sect. VIII.— Special Provisions as to Libels in Newspapees.

Reports. — The special provisions as to reports in newspapers of the
proceedings of courts of justice and pubHc meetings have already been
stated, ante, pp. 1047, 1049.

Prosecution. — By sect. 8 (2) of the Law of Libel Amendment Act,
1888 (51 & 52 Vict. c. 64), ' No criminal prosecution shall be commenced
against any proprietor (a), publisher, editor, or any person responsible for
the publication of a newspaper [a) for any libel (h) published therein with-
out the order of a judge at chambers being first had and obtained (c).
Such application shall be made on notice to the person accused who shall
have an opportunity of being heard against such application ' (d).

By sect. 4 of the Newspaper Libel and Eegistration Act, 1881 (44 & 45
Vict. c. 60), ' A court of summary jurisdiction, upon the hearing of a
charge against a proprietor, publisher, or editor, or any person responsible
for the publication of a newspaper, for a libel published therein, may
receive evidence as to the publication being for the public benefit, and
as to the matters charged in the libel being true, and as to the report
being fair and accurate, and published without malice, and as to any
matter which under this or any other Act, or otherwise, might be given
in evidence by way of defence by the person charged on his trial on
indictment, and the Court, if of opinion after hearing such evidence that
there is a strong or probable presumption that the jury on the trial would
acquit the person charged, may dismiss the case ' (e).

Definitions. — By the Newspaper Libel and Eegistration Act, 1881
(44 & 45 Vict. c. 60), s. 1, ' neivspaper ' is defined for the purposes of the

(y) R. V. Burdett, 4 B. & Aid. 314. infra.

(z) This section superseded and repealed (6) It is to be noted that the general

44 & 45 Vict. 0. 60, s. 3. Under that term ' libel ' is used and not the limited

ee tion the words 'criminal prosecution' term 'defamatory libel.'

were held not to apply to a criminal (c) There is no appeal against the refusal

information whether ex officio or filed by of a judge to order such prosecution,

leave of the Court. R. v. Yates, 11 Q.B.D. Ex parte Pulbrook [1892], 1 Q.B. 86.

750; 14 Q.B.D. 648. As to such infor- {d) The procedure is by summons issued

mations see R. v. The World, 13 Cox, 305 : from the Crown Office. Crown Office

B. V. Labouchere, 12 Q.B.D. 320 ; B. v. Rules, 1906, 1. 265.

AUison, 16 Cox, 559. Short and Mellor, (e) This section overrides, as to news-
Crown Practice (2nd ed.), 153, 169. paper libels, the case of R. v. Garden, 5

a) Defined in 44 & 45 Viet. c. 60, s. 1, Q.B.D. 1, ante, p. 1058.

CHAP. XIII.] Special Provisions as to Libels in Newspapers. 1061

Act as meaning ' any paper containing public news, intelligence, or
occurrences, or any remarks or observations therein (sic) printed for
sale, and published in England or Ireland periodically or in parts or
numbers at intervals not exceeding twenty-six days between the publi-
cation of any two such papers, parts, or numbers ' : and ' also any paper
printed in order to be dispersed and made public weekly or oftener or at
intervals not exceeding twenty-six days, containing only or principally
advertisements.'

By the same section ' The word " proprietor " shall mean and include
as well the sole proprietor of any newspaper, as also in the case of a divided
proprietorship the persons who, as partners or otherwise, represent and
are responsible for any share or interest in the newspaper as between
themselves and the persons in like manner representing or responsible
for the other shares or interests therein, and no other person.'

Ascertainment of the Names of Proprietors, &c. — By sect. 8 a
register of newspapers as above defined is established under the super-
intendence of the registrar of joint stock companies, to which the
printers and publishers of every such newspaper must make an annual
return in a prescribed form, of the title of the newspaper and the names
and addresses of all the proprietors (s. 9). These provisions do not apply
where the newspaper is owned by a joint stock company incorporated
under the Companies Acts, 1862 to 1901, in which case the company is
registered in the ordinary course under those Acts (s. 18). Penalties are
imposed for failing to make returns under the Act of 1881, or for wilful
misrepresentation or omissions therein (ss. 10, 12). The returns when
made are entered on the register (s. 13). And by sect. 15, ' Every copy
of an entry in or extract from the register of newspaper proprietors,
purporting to be certified by the registrar or his deputy for the time being
or under the ofiicial seal of the registrar, shall be received as conclusive
evidence of the contents of the said register of newspaper proprietors, so
far as the same appears in such copy or extract without proof of the
signature thereto or of the seal of ofGice affixed thereto, and every such
certified copy or extract shall in all proceedings, civil and criminal, be
accepted as sufficient prima facie evidence of all the matters and things
thereby appearing unless and until the contrary thereof be shewn.'

By a series of enactments of earlier date incorporated in the schedule
to the Newspapers, Printers, and Eeading Eooms Repeal Act, 1869 (/)
(32 & 33 Vict. c. 24), obligations are placed on the printers and publishers

(/) The first Act dealing ■with'^[thia newspaper, a certified copy of the decla-

subjeot, 38 Geo. III. o. 78, was repealed ration made at the stamp ofiice under 6 &

and replaced by 6 & 7 Will. IV. c. 76, s. 32, 7 Will. IV. c. 76, s. 6 (rep.), was put in,

itself repealed by the Act of 1869, except and it was » joint declaration, and stated

sect. 19, re-enacted in the schedule, but that, ' We are the sole proprietors ; that

relating only to . civil proceedings, viz. is to say, the said J. H., as legal owner as

bills for the discovery of the names of mortgagee, and M. Y., as owner of the

printers, publishers and newspapers, for equity of redemption,' it was objected

the purposes of actions of damages for that this declaration shewed that the

defamation. There were numerous de- defendant was » mortgagee only, and not

cisions on 38 Geo. III. c. 78, as to proof a proprietor against whom an action for

of publication, included in the 6th edition libel could be maintained ; but Campbell,

of this work, i. 638-640, which are here C.J., held that the defendant was hable.

omitted as of no present value. Where Duke of Brunswick v. Harmer, 3 C. & K.

in an action for libel to prove that the 10.
defendant, H., was the proprietor of a

1062 Of Criminal Libels. [book ix.

of papers and books as to printing therein the name of the printer and
preserving copies of papers. The substance of the scheduled enactments-
is as follows : —

By the Unlawful Societies Act, 1799 (39 Geo. III. c. 79), s. 29 (g),
' Every person who shall print any paper for hire, reward, gain or profit,
shall carefully preserve and keep one copy (at least) of every paper so
printed by him or her, on which he or she shall write, or cause to be
written or printed, in fair and legible characters, the name and place of
abode of the person or persons by whom he or she shall be employed to
print the same ; and every person printing any paper for hire, reward,
gain, or profit, who shall omit or neglect to write, or cause to be written
or printed as aforesaid, the name and place of his or her employer on
one of such printed papers, or to keep or preserve the same for the space
of six calendar months next after the printing thereof, or to prodirce and
shew the same to any justice of the peace who within the said space of
six calendar months shall require to see the same, shall for every such
omission, neglect, or refusal, forfeit and lose the sum of twenty pounds.''
By sect. 31 (g), ' nothing herein contained shall extend to the impres-
sion of any engraving, or to the printing by letterpress of the name or
the name and address, or business or profession, of any person, and the
articles in which he deals, or to any papers for the sale of estates or goods
by auction or otherwise.' Sects. 34, 35 & 36 relate to the recovery of the
penalties. The Act of 1799 does not apply to ' papers printed by the
authority and for the use of either House of Parliament ' (h) nor to bank
notes or bank post bills of the Bank of England or to valuable securities,
or to prints of proceedings in courts of justice or to papers printed by the
authority of any public board or public officer in the execution of the
duties of their respective offices (?').

By an Act of 1839 (2 & 3 Vict. c. 12), s. 2 (j), ' Every person who
shall print any paper or book whatsoever which shall be meant
to be published or dispersed, and who shall not print upon the front of
every such paper, if the same shall be printed on one side only, or upon
the first or last leaf of every paper or book which shall consist of more
than one leaf, in legible characters, his or her name and usual place of
abode or business ; and every person who shall publish or disperse, or
assist in publishing or dispersing, any printed paper or book on which
the name and place of abode of the person printing the same shall not be
printed as aforesaid, shall for every copy of such paper so printed by him
or her forfeit a sum not more than five pounds. Provided always, that
nothing herein contained shall be construed to impose any penalty upon
any person for printing any paper excepted out of the operation of the
Unlawful Societies Act, 1799, either in the said Act or by any Act made
for the amendment thereof.' {Vide supra.)

By sect. 3, in the case of books or papers printed at the University
Press of Oxford, or the Pitt Press of Cambridge, the printer, instead of
printing his name thereon, shall print the following words : ' Printed at

{g) Ss. 29, 31, 34, 35, 36, are re-enacted (i) 51 Geo. III. c. 65, s. 3, as re-enacted

by 32 & 33 Vict. o. 24, s. 1, sehed. ii. in 32 & 33 Vict. o. 24, a. 1, sched. ii.

{h) S. 28 as re-enacted in 32 & 33 Vict. (j) Ss. 2, 3, as re-enacted in 32 & 33

c. 24, sched. ii., vide ante, p. 1043. Vict, c' 24, s. 1, sched. ii.

CHAP, xiii.] Special Provisions as to Libels in Newspapers. 1063

the University Press, Oxford,' or ' The Pitt Press, Cambridge,' as the
case may be.

Proceedings under the Acts of 1799 and 1839 for penalties are not to
be commenced except in the name of the Attorney or Sohcitor-General
in England or the Lord Advocate in Scotland (k).

The provisions of the Acts of 1869 and 1881 do not exclude the proof
of publication by modes other than those permitted by the statutes.

Where the affidavit of a proprietor under 38 Geo. III. c. 78 (rep.),
described the proprietor's residence to be in ' Bed Lion Street, St. Ann's
Square,' and on the paper it was described as in ' St. Ann's Square ' ;
Tenterden, C.J., held that as the party was not excluded from other
proof of publication, if he rehed on the statutory proof he must bring
himself within the statute, and that the discrepancy was fatal (l). In
moving for a criminal information a prosecutor was not bound to adopt
the statutory proof, but if he adopted any other, the publication
must have been shewn by some direct proof (m).

(i) 2 & 3 Viet. o. 12, s. 4, and 9 & 10 (m) R. v. Baldwin, 8 A. & E. 168 ; and

Vict. 0. 33, s. 1, re-enacted in 32 & 33 Vict. see Watts v. Fraser, 7 A. & E. 223 ; R. v.

c. 24, s. 1, ached, ii. Stanger, L. R. 6 Q.B. 3521 ; R. v. Pearce,

[1) Murray v. Souter, 6 Bing. 414, cit. Peake, 75.

END OP VOL. 1

PBINTED BY

SPOTTISWOODE AND CO. LTD., COLCHESTER

LONDON AND ETON

( 1064O )

CANADIAN NOTES.

OF CRIMINAL LIBELS.

Sec. 1 — Preliminary.

As to Blasphemous Publications.— See p. 400a.

As to Sedition. — See p. 316a.

As to Indecent Publications and Exhibitions. — See p. 1883a.

As to Interference with the Administration of Justice. — See p. 554a.

Sec. 2. — Defamatory Libel.

Defamatory Libel, Definition of. — Code see. 317.

Publishing Defined. — Code sec. 318.

Newspaper Defined. — Code sec. 222.

Newspaper Proprietor's Responsibility Presumed. — Code see. 329.

Evidence. — It must be proved that the defendant was proprietor
or publisher of the journal at the time of the publication of the libel.
R. V. Sellars, 6 Montreal Legal News 197.

When the accused in a case of defamatory libel in a newspaper
resorts to the defence allowed by Code sec. 329 that the publication
of the libel was made without his knowledge, the Crown may prove the
publication of former libels of a similar character by the same editor,
in order to establish the liability of the accused resulting by the terms
of article 329 from his continuing to retain this editor in the conduct
of the newspaper. R. v. MoUeur (No. 1) (1905), 12 Can. Cr. Cas. 8.

Sec. S.— Trial.

Place of Trial— Code sec. 888.

In order to obtain a change of venue in a prosecution for defamatory
libel such facts must be shewn as will satisfy the Court that a fair
trial cannot be had at the present venue, and it is not sufScient that the
applicant's solicitor swears to a belief that a fair trial is impossible
there because of the prosecutor 's interest in political affairs. The fact
that two abortive trials of the cause have already taken place at both
of which the jury disagreed, is not of itself a ground for ordering
a change of venue. R. v. Nicol (1900), 4 Can. Cr. Cas. 1 (B.C.).

General Verdict of Not Guilty. — Code sec. 956.

This section originated in the English Act of 1792, 32 Geo. III. ch.

1064& Criminal Libels. [BOOK ix.

60, which became part of the law of the Province of Canada. Under it,
it is for the jury to say whether, under the facts proved, there is libel
and whether the defendant published it. R. v. Dougall (1874), 18
L.C. Jur. 85.

Sec. 4. — Punishment.

For Publishing or Threatening to PtiMish with Intent to Extort,
etc. — Code sec. 332.

For Libel Known to be False. — Code sec. 333.

For Defamatory Libel. — Code sec. 334.

Sec. 5. — Indictment.

Innuendo. — An indictment charging the publication of a defamatory
libel, which does not state that the same was likely to injure the reputa-
tion of the libelled person by exposing him to hatred, contempt or
ridicule, or was designed to insult him, is bad by reason of the omis-
sion of an essential ingredient of the offence. R. v. Cameron (1898),
2 Can. Cr. Cas. 173.

On an indictment for a libel published in a newspaper, it appeared
that the editor (who was not indicted) before inserting the libel
shewed it to the prosecutor, who did not express any wish to suppress
the publication, but wrote a reply, which was also inserted. The
jury found it to be a malicious libel, a:nd defendants were convicted.
The Court held that what the prosecutor said to the editor, and did,
did not hold out any assurance of impunity to the defendants, so as
to render the conviction illegal, and a new trial was refused. R. v.
McBlderry (1860), 19 U.C.Q.B. 168.

"When an indictment for defamatory libel consisting of words harm-
less in themselves, but importing by innuendo an imputation of dis-
honourable conduct contains in addition to the enunciation of the
incriminating words an allegation of the sense in which they should be
understood the Crown will be allowed to prove extrinsic circumstances
which impute this meaning to them. It is not necessary to enumerate
these circumstances in the indictment, and the accused is sufficiently
guarded against surprise by the right that he has to demand particu-
lars. See Code sees. 859-860. Failing to do so, he will not be allowed
to object to the admission of the evidence above mentioned and the
question of its legality is not one which can be reserved for the
opinion of the Court of Appeal. R. v. MoUeur (No. 1) (1905) , 12 Can.
Cr. Cas. 8.

A person alive to the vindication of his character when assaulted
and entitled to the remedy of criminal information must apply with
reasonable promptitude. The general rule is stated by Lord Mans-
field in R. V. Robinson (1765), 1 W. Bl. 542, where he said: "There

CHAP. XIII. J Indictment. 1064:C

is no precise number of weeks, months or years ; but, if delayed, the
delay must be reasonably accounted for. The party complaining must
come to the Court either during the term next after the cause of
complaint arose, or at so early a period in the second term thereafter
as to enable the accused, unless prevented by the accumulation of
business in the Court, or other cause within the second term ; and this
regardless of the fact whether an assize intervened or not. E. v. Kelly
(1877), 28 U.CC.P. 35, 41 U.C.Q.B. (1877), 1, 24.

It is of the highest importance that the applicant for a criminal
information should in all cases lay before the Court all the circum-
stances fully and candidly in order that the Court may deal with the
matter. K. v. Wilkinson (1877), 41 U.C.Q.B. 1, 25 (citing R. v.
Aunger, 28 L.T.N.S. 634 (S.C), 12 Cox 407.

The granting of a criminal information is discretionary with the
Court under all circumstances; the application is not to be enter-
tained on light or trivial grounds. In dealing with such an application,
the Court has always exercised a considerable extent of discre-
tion in seeing whether the rule should be granted, and whether the
circumstances are such as to justify the Court in granting the rule
for a criminal information.- R. v. Wilkinson (1877), 41 U.C.Q.B. 1, 29.

There are two things principally to be considered in dealing with
such an application; (1) To see whether the person who applies to
conduct the prosecution, the relator or the informer, has been him-
self free from blame, even though it would not justify the defendant
in making the accusation; (2) To see whether the offence is of such
magnitude that it would be proper for the Court to interfere and grant
the criminal information. Both these things have to be considered,
and the Court would not make its process of any value unless the
Judges considered them and exercised a deal of discretion, not merely
in saying whether there is legal evidence of the offence having been
committed, but also exercising their discretion as men of the world,
in judging whether there is reason for a criminal information or not. ' '
R. V. PlimsoU (1873), noted in 12 C.L.J. 227; R. v. Wilkinson (1877),
41 U.C.Q.B. 1, 29.

' ' The Court always considers an application for a criminal informa-
tion as a summary extraordinary remedy depending entirely on their
discretion, and therefore not only must the evidence itself be of a
serious nature, but the prosecutor must apply promptly or must satis-
factorily account for any apparent delay. He must also come into
Court with clean hands, and be free from blame with reference to the
transaction complained of ; he must prove his entire innocence of every-
thing imputed to him, and must produce to the Court such legal evi-
dence of the offence having been committed by the defendant as would
warrant a grand jury in finding a true bill against the defendants."

lOQid Criminal Libels. [book ix.

Per Quain, J., in R. v. PlimsoU (1873), noted, 12 C.L.J., p. 228, cited
by Hagarty, C.J., in R. v. Kelly (1877), 28 U.C.C.P. 35.

The Court confines the granting of criminal informations for libel
to the ease of persons occupying official or judicial positions, and
filling some ofSces which gives the public an interest in the speedy
vindication of their character, or to the ease of a charge of a very
grave or atrocious nature ; leave was therefore refused to the manager
of a large railway company to file a criminal information for libel, on
the ground that he did not come within the description of persons
referred to. Per Armour, J. — ' ' I think the practice of granting leave
to file criminal informations in this country, having regard to the
social conditions of its inhabitants and the liberties which they enjoy,
is, to say the least of it, of very doubtful expediency, and should, in
my opinion, be discontinued and, if necessary, abolished by legislative
enactment. The very rule adopted in England, that it will only be
granted to what I may call 'a superior person' is the strongest reason,
to my mind, why in this country it should never be granted at all.
Whatever may be deemed desirable in England, I do not think it
desirable that in this country there should exist a remedy for the
superior person which is denied to the inferior." R. v. Wilson (1878),
43 U.C.Q.B. 583.

Per Cameron, J. — ' ' There is no real necessity, so far as I am aware,
for any one seeking this remedy. Any person libelled has a right to
lay an information before a magistrate charging any one who may have
libelled him with the ofEence, and may then by his oath deny the truth
of the slanderous charge or imputations." Ibid. Hagarty, C.J.,
added that it was not to be understood that the Court laid down any
absolute rule as to future applications for criminal informations, or
that they meant to fetter their discretion in dealing therewith. Ibid.
Reporter's note. R. v. Wilson (1878), 43 U.C.Q.B. 583.

Where the libel charges the person libelled with having, by a pre-
vious writing, provoked it, the latter by his affidavit on which he
moves for a criminal information is bound to answer such charge
otherwise the affidavit will be held insufficient. R. v. Edward Whelan
(1862), 1 P.E.I. Rep. 220, per Peters, J.

In Trinity Term, 1876, an application was made for a criminal
information for libel in newspapers published on 23rd and 30th
March and 25th May. The delay in not applying to the Court during
Easter Term, or until 30th August, was not satisfactorily accounted
for, and the Court refused the application, but, in view of the virulent
language of the article, without costs. R. v. Kelly (1877), 28 U.C.C.P.
35.

In answer to an application for a criminal information for libel
the defendants filed an affidavit stating that they had no personal
knowledge of the matter contained in the alleged libels, but received

CHAP. XIII. J Evidence and Defences. 1064e

the information from persons whom they trusted to be reliable and
trustworthy; that the Glole newspaper was controlled by the appli-
cant, who was an active politician, and had published a number of
articles violently attacking one S., who was a candidate for a public
office, and the libels in question were published with a view of counter-
acting the effect of these articles, and believing them to be true, and
without malice. This was held to be no ground for the Court refusing
to the applicant leave to file a criminal information for the reiterated
publication in a newspaper of matter not pretended either to be not
libellous, or to be true in fact. R. v. Thompson (1874), 24 U.C.C.P.
252.

Quasre, whether a criminal information is the course to be adopted
for wilful and corrupt misconduct of a Judge holding an inferior Court
of record. R. v. Ford (1853), 3 U.C.C.P. 209, 218.

Where there is foundation for a libel, though it falls short, of justi-
fication, an information will not be granted. The Queen v. Biggs, 2
Man. R. 18.

Sec. 6. — Evidence.

A commission to take the evidence of witnesses abroad in a libel
prosecution is properly ordered at the trial where the evidence relates
wholly to a plea of justification just entered of record. R. v. Nicol
(1898), 5 Can. Cr. Cas. 31 (B.C.).

Where a convicted person, instead of being sentenced is discharged
from custody upon entering into a recognizance with sureties to appear
and receive judgment when called upon, it is only on motion of the
Crown that the recognizance can be estreated, or judgment moved
against him. In Ontario, a private prosecutor in a prosecution for
defamatory libel has no locus standi to make the application. R. v.
Young (1901), 4 Can. Cr. Cas. 580 (Ont).

See Code sec. 947 as to evidence in respect of the publication of an
extract from an authorized Parliamentary publication.

Sec. 7. — Matters of Defence.

(1) Absolute Privilege.

(a) Publication by petition to or under authority of Parliament.
Code sec. 321.
Certificate of publication by order of. Parliament. Code

see. 912.
Copy of report may be laid before Court. Code sec. 913.
Stay of proceedings had on dismissal. Code sees. 912, 913.
(&) Publication in judicial proceedings. Code sec. 320.

(2) Qualified Privilege.

(a) Fair reports of proceedings in Parliament. Code sec. 322.
The Court has power summarily to commit for constructive con-

1064f Criminal Libels. [book ix.

tempt notwithstanding sees. 322, 324 and 325 as to fair reports of
Court proceedings and fair comment upon public affairs; but the
Court will not exercise the power where the offence is of a trifling
nature, but only when necessary to prevent interference with the
course of justice. Stoddard v. Prentice (1898), 5 Can. Cr. Cas. 103,
6 B.C.R. 308.

The privilege given to a report published in good faith of judicial
proceedings does not extend to the publication of declarations made
by one of the counsel out of Court and in private conversation. Des-
jardins v. Berthiaume, 16 Que. S.C. 506.

Code sec. 322 refers to libel and not to contempt of Court, and
there is still power to commit summarily for constructive contempt,
ex. gr., a newspaper editorial to the effect that one of the parties to a
pending suit will lose the case. Stoddart v. Prentice (1898), 5 Can.
Cr. Cas. 103, 6 B.C.R. 308.

Extracts from Parliamentary Publications. — Code sec. 321.

WJwle Publication may be Given in Evidence. — Code sec. 947.

Reports of Public Meetings. — Code see. 323.

Publication of Matter Believed to be True, for Public Benefit. —
Code sec. 324.

(3) Fair Comment.

(1) Upon Public Conduct. — Code sec. 325.

(2) Upon Published Book.— Code sec. 325(2).

(4) Publication.

(1) In Good Faith, Seeking Redress. — Code sec. 326.

(2) By Answers to Inquiries. — Code sec. 327.

(3) By Giving Information to Interested Persons. — Code sec.
328.

(4) After Invitation or Challenge by Complainant. — Code sec.
319.

(5) Truth.

When Truth a Defence. — Code sec. 331.

Not Guilty May be Pleaded in Addition. — Code sec. 331(2).

Effect of Plea on Punishment. — Code sec. 331 (3) .

Plea of Justification. — Code see. 910.

(a) In Two Senses or Either Sense. — Code sec. 910(2).

(b) Plea in Writing. — Code sec. 910(3).

A plea of justification must set forth concisely the particular facts
by reason of which its publication was for the public good, but must
not contain the evidence by which it is proposed to prove such facts
nor any statements purely of comment or argument. R. v. Grenier 1
Can. Cr. Cas. 55.

A plea of justification, which embodies a number of letters which it
is proposed to use as evidence, and contains paragraphs of which the

CHAP. xiii.J Justification. ' lOUg

matter consists merely of comments and argument, is irregular and

illegal ; and should be struck from the record, or the illegal averment

should be struck out, and the defendant allowed to plead anew. Ibid.

„ To an indictment for libel, the language of which was couched in

|; general terms, the defendant pleaded that the words and statements

;■ complained of in 'the indictment were true in substance and in fact,

and that it was for the public benefit, etc. It was held that the plea

was insufficient because it did not set out the particular facts upon

which the defendant intended to rely. R. v. Creighton (1890), 19

O.R. 339.

The existence of rumours cannot be proved in justification of the
libel. R. V. Dougall (1874), 18 L.C. Jur. 85.

In a prosecution for an illegal defamatory libel contained in a
newspaper article condemning an employer's dismissal of employees
belonging to a trade union and charging that the distribution of cer-
tain gratuities by the employer to his employees was impelled by
motives of selfishness on his part and was for the purpose of winning
public approval and :^avourable public comment through press notices
thereof, a plea of justification will not be struck out on the objection
that the facts therein alleged do not shew that it was for the public
benefit that the publication should be made, if such plea contains a
charge that the press notices favourable to the complainant were pub-
lished at his instance. If the complainant in a prosecution for defama-
tory libel has himself called public attention to the subject-matter of
the alleged libel by obtaining the publication of newspaper articles
commending his conduct therein, he thereby invites public criticism
thereof and cannot object that the answer to his own articles is not a
publication in the public interest. R. v. Brazeau (1899), 3 Can. Cr.
Cas. 89 (Que.).

Where on the trial of a criminal information for libel the Judge in
substance told the jury that the defendant, under the pleas of justifi-
cation, was bound to shew the truth of the whole of the libel to which
the plea is pleaded, and that in his opinion, the evidence fell far short
of the whole matter charged ; such a direction is not so much a direc-
tion on the law as a strong observation on the evidence, which may be
made in a proper case without being open to the charge of misdirec-
tion. R. V. Port Perry, etc., Co., 38 U.C.Q.B. 431; R. v. "Wilkinson
(1878), 42 U.C.Q.B. 492, 505 (per Harrison, C.J., Wilson, J, dissent-
ing).

Internet Archive Audio

Featured

Top

Images

Featured

Top

Software

Featured

Top

Texts

Featured

Top

Video

Featured

Top

Mobile Apps

Browser Extensions

Archive-It Subscription

Save Page Now

Full text of "A treatise on crimes and misdemeanors"

See other formats